Brayman v. Keypoint Government Solutions, Inc.

          ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION

          WILLIAM J. MARTÍNEZ UNITED STATES DISTRICT JUDGE.

         Plaintiff Rachel Brayman (“Plaintiff”) brings this action against Defendant KeyPoint Government Solutions, Inc., (“Defendant”) for alleged violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (“FLSA”). (ECF No. 1.) Plaintiff's FLSA claim concerns Defendant's alleged failure to properly compensate employees for overtime hours worked and an alleged policy of only permitting overtime in certain circumstances. (Id. ¶¶ 20-25.)

         Currently before the Court is Plaintiff's “Motion for Conditional Certification and Court-Authorized Notice” (the “Motion”). (ECF No. 22.) Plaintiff seeks to have this matter conditionally certified as a collective action under the FLSA for “all persons who worked as Field Investigators, Background Investigators, or in other positions with similar job duties for Defendant” from March 8, 2015 to present.^[1] (ECF No. 1 ¶12; ECF No. 22 at 2.) Plaintiff also seeks to have her proposed notice approved by the Court. Also before the Court is Defendant's Motion to Strike Portions of Plaintiff's Declaration (“Motion to Strike”). (ECF No. 64.) For the reasons explained below, Defendant's Motion to Strike is denied and Plaintiff's Motion is granted as to conditional certification and denied as to the proposed notice. The parties are instructed to meet and confer regarding the proposed notice, taking into account the Court's below instructions, and submit a revised proposed notice by November 16, 2018.

         I. BACKGROUND

         Defendant provides investigative services and background screenings for the federal government and private sector. (ECF No. 1 ¶¶ 4-5.) Defendant is headquartered in Loveland, Colorado, and has employees throughout the United States, Puerto Rico, and Guam. (Id. ¶¶ 3, 7.) Background investigation services are performed by Defendant's Field Investigators, Background Investigators, or other similar positions (collectively, “Investigators”). (Id. ¶ 6; ECF No. 22 at 2.) Investigators' job duties include “performing background investigations on individuals seeking to obtain [a] security clearance” and require Investigators to conduct interviews, collect documents and records, catalogue records obtained from law enforcement agencies, and compile reports. (ECF No. 22-4 at 2; see also ECF No. 22-5 (job descriptions).)

         Defendant explains that Field Investigators are divided among geographic regions, each of which has a Field Manager and a Logistics Analyst. (ECF No. 29 at 2; ECF No. 29-1 at 2.) Field Managers supervise the Field Investigators in the region and Logistics Analysts are responsible for assigning work to Field Investigators (though Field Managers may occasionally assign work as well). (ECF No. 29 at 2; ECF No. 29-7 at 2.) Work is assigned to Field Investigators on a “source unit” basis; the number of source units depends on the task performed and the weekly source unit expectations for a Field Investigator depend on the individual's experience. (ECF No. 29-1 at 2.)

         Plaintiff worked as a Field Investigator for Defendant from approximately September 2014 to June 2017. (ECF No. 1 ¶ 9; ECF No. 22-4 at 2.) Plaintiff worked remotely from her residence in New Jersey and covered a geographic territory in New Jersey. (ECF No. 1 ¶ 10; ECF No. 22-4 at 2.)

         Plaintiff alleges that Defendant had a “common policy and/or practice” of encouraging or requiring Plaintiff and others to work unpaid overtime hours. (ECF No. 1 ¶ 16.) Specifically, Plaintiff contends that she regularly had to work unpaid overtime hours to meet Defendant's production requirements, but was not paid for those overtime hours. (Id. ¶¶ 17-18.) Plaintiff estimates for the week of November 13-19, 2016, she worked between 55 and 60 hours, but was not paid for her overtime hours. (Id. ¶ 19.) Although Plaintiff and others were required to record hours worked in an electronic timekeeping system, Plaintiff contends that the hours recorded do not reflect all the hours Plaintiff or other worked in part because Defendant instructed Plaintiff and other to underreport actual hours worked. (Id. ¶¶ 20, 22.) Plaintiff also claims that Defendant modified the time records of Plaintiff and others to reflect fewer overtime hours worked. (Id. ¶ 23.) Plaintiff states that her supervisor acknowledged “in emails and on teleconference calls that Plaintiff and other Investigators worked overtime hours, but refused to approve all the overtime hours that they worked.” (Id. ¶ 24.) Plaintiff claims that Defendant's unlawful conduct is “widespread, repetitious, and consistent” as well as “willful and in bad faith.” (Id. ¶¶ 25-26.)

         In support of the Motion, Plaintiff submits her own declaration as well as declarations from six other former Investigators, namely Desiree Gaudet, Tasha George, Ebony Holmes, Catiana Munoz, DeAijha Perry, and Paul Tschiffely. (ECF No. 22-4.) These individuals have all opted to join the case. (ECF Nos. 1-2; 8-1; 17-1; 18-1.) These declarations demonstrate that Investigators covered specific geographic territories in various parts of the United States (District of Columbia, Louisiana, Maryland, New Jersey, and Virginia) in substantially similar positions. (ECF No. 22-4.) The declarations each state that the individual was not paid for all of the overtime hours worked, could only record overtime if the production quota was met, and was discouraged from reporting all overtime hours worked. (Id.)

         In response, Defendant submits a declaration from Marci Haabestad, Defendant's Chief People Officer, stating that Defendant's official policy is that all hours worked, regular or overtime, must be recorded. (ECF No. 29-1 at 2-3; see ECF No. 29-2.) Defendant also submits the declaration of Ryan Haunfelder, Defendant's Head of Data Science, which states that 66% of the time when an Investigator recorded overtime, the same Investigator was, on average, 2.76 source units behind their production quota. (ECF No. 29-17 at 2.) Of the 19 individuals who filed consents to join, 12 had not met his or her production quota when he or she recorded overtime. (Id. at 3-7; ECF No. 29 at 5.) By implication, the other seven individuals always met their production quota when they asked for overtime.

         Defendant also notes that a number of Field Investigators signed dispute resolution agreements in October 2015, and estimates that approximately 2, 596 individuals of the 4, 231 in the putative collective action are bound to litigate any claim for unpaid wages under the FLSA in individual, binding arbitration. (ECF No. 29 at 5-6; ECF No. 29-1 at 4.)

         Defendant also notes that approximately 54% of the individuals employed as Field Managers and Logistics Analysts since March 2015 also served as Field Investigators on or after March 2015 and are thus potential members of the putative collective action. (ECF No. 29 at 5; 29-1 at 4.) Defendant does not state the total number of persons who have served in both capacities since March 2015.

         II. LEGAL STANDARD

         The FLSA permits collective actions when allegedly aggrieved employees are “similarly situated.” 29 U.S.C. § 216(b). Whether employees are similarly situated is judged in two stages: a preliminary or “notice stage” (at issue here) and then a more searching, substantive stage, usually after the close of discovery. Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102-03, 1105 (10th Cir. 2001). At the notice stage, a plaintiff requires “nothing more than substantial allegations that the putative [collective action] members were together the victims of a single decision, policy, or plan.” Id. at 1102 (internal quotation marks omitted); see also Boldozier v. Am. Family Mut. Ins. Co., 375 F.Supp.2d 1089, 1092 (D. Colo. 2005) (applying Thiessen standard).

         If the plaintiff meets this standard, the Court may order the defendant to provide contact information for all employees and former employees that may be eligible to participate in the collective action, and the Court may approve a form of notice to be sent to all of those individuals. See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169-74 (1989). Such notice is often necessary because, unlike class actions under Federal Rule of Civil Procedure 23, collective actions under the FLSA require a party to opt in rather than opt out. See 29 U.S.C. § 216(b) (“No employee shall be a party plaintiff to any [collective] action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.”). Obviously current or former employees cannot opt in if they do not know about the pending action.

         III. ANALYSIS

         Defendant claims that, for various reasons, the collective action should not be conditionally certified. The Court will address these arguments in turn.

         A. Plaintiff's Declaration

         Defendant moves to exclude certain statements from Plaintiff's March 30, 2018 declaration submitted in support of conditional certification as conflicting with her August 21, 2018 deposition testimony. (ECF No. 64.) Specifically, Defendant contends that Plaintiff's deposition testimony contradicted three material statements in her declaration regarding Plaintiff's personal knowledge of whether other Investigators worked unpaid overtime hours, whether Plaintiff could only record overtime hours if she met her production quota, and whether Defendant paid Plaintiff for all overtime hours worked.^[2]

         Plaintiff's deposition statements do not contradict or undermine her affidavit in the manner suggested by Defendant, and the Court finds no reason to strike or disregard the statements. First, Plaintiff's affidavit states “[b]ased on my personal knowledge, observations, and experiences, I believe that other Investigators . . . worked unpaid overtime hours because of KeyPoint's policy. . . .” (ECF No. 22-4 at 3, ¶ 17.) Defendant seeks to strike Plaintiff's declaration statement based on her statement at her deposition that she had no knowledge of any other field investigator working unpaid overtime hours. (ECF No. 64 at 3, 9.) However, Plaintiff did not retract or contradict her statements regarding her belief that others were subject to the same policy. And pleading on belief does not undermine Plaintiff's allegation that others ...