Valverde v. Xclusive Staffing, Inc.

          ORDER

          RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the “Report and Recommendation on Plaintiffs' Motion for Collective Certification of their FLSA Claims against all Defendants Except for HCA-HealthONE LLC (Docket No. 139)” (the “Recommendation”) (ECF No. 207) recommending that Plaintiffs' Motion for Collective Certification of their FLSA Claims against all Defendants Except for HCA-HealthONE LLC (the “Motion”) (ECF No. 139) be granted. Defendants have filed an objection (the “Objection”) (ECF No. 212), to which Plaintiffs have filed a response (the “Response”) (ECF No. 225). Upon consideration of the Recommendation, Objection, Response, relevant parts of the record, and the applicable statutes and case law, and being otherwise fully advised, the Recommendation is ACCEPTED IN PART and REJECTED IN PART WITHOUT PREJUDICE, and Defendants' Objection is OVERRULED IN PART and SUSTAINED IN PART.

         I. BACKGROUND

         The parties are well versed with the background of this case, so it will not be repeated here. (See ECF No. 193, Order on recommendation on Defendants' Motion to Dismiss.) At issue now is whether the Court should grant Plaintiffs' request for conditional certification of their Fair Labor Standards Act (“FLSA”) claims against the remaining Defendants, ^[1] based on two alleged policies: (1) the $3.00 deduction policy; and (2) the 30-minute meal deduction policy. The first is the alleged policy of deducting $3.00 from each employee's paycheck for the cost of issuing the check, while the second is the alleged policy of automatically deducting 30 minutes each day for meal breaks, whether or not employees were allowed to take them. Discovery has been stayed in this case.

         Plaintiffs' Motion requested the following:

• Conditionally certify their FLSA claims against all Defendants except HCA-HealthONE LLC under 29 U.S.C. § 216(b), a nationwide certification as to the Xclusive Defendants^[2] (hereafter “Xclusive”), along with a certification of three subclasses consisting of Hotel Defendants;^[3]

• Order the parties to meet and confer about notice and its method of distribution;

• Order the production of names and contact information for members of the conditionally-certified opt-in plaintiffs; and

• Issue notice consistent with potential equitable tolling arguments of the opt-in plaintiffs.

(ECF No. 139, pages 1-2.)

         The Magistrate Judge recommended the following:

• That the FLSA claim based on the two policies be conditionally certified as a collective action;

• That such certified opt-in plaintiffs be nationwide, along with subclasses for the Hotel Defendants;

• That Plaintiffs may send a Hoffman-La Roche^[4] notice to potential opt-in plaintiffs;

• That the best interests of justice may be served by tolling the statute of limitations for opt-in plaintiffs during the pendency of a motion for conditional certification, i.e., from the date in which the Motion was filed (December 9, 2016) until 90-days after the opt-in plaintiffs receive notice of this lawsuit; and

• That Defendants be ordered to provide the names and contact information of potential opt-in plaintiffs.

         Defendants' Objection followed.

         II. LEGAL STANDARD

         A. Dispositive or Nondispositive?

         Defendants' objection assumes the Motion is dispositive, as does the Recommendation. Plaintiffs contend it is not. The issue has apparently not been resolved by the Tenth Circuit. On this record, the Court finds it need not decide as, under either standard, the Court reaches the same conclusion.

         B. Conditional Certification

         The Magistrate Judge correctly set forth the standard for conditional certification so it need not be repeated. See Thiessen v. General Electrical Capital Corp., 267 F.3d 1095, 1105 (10th Cir. 2001) (approving the two-step “ad-hoc” approach). The Court will address and apply such standards in ruling on the Objection.

         III. ANALYSIS

         A. ...