United States District Court, D. Colorado
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's Motion for
Approval of Hoffman-LaRoche Notice [Docket No. 85].
The Court has jurisdiction pursuant to 28 U.S.C. § 1331.
operate group homes focused on providing care for
developmentally disabled adults. Docket No. 33 at 2, ¶
6-7. For approximately ten years, plaintiff was employed by
defendants as a “Life Skills Specialist.”
Id. at 1-2, ¶¶ 5-6. By the end of her
employment, plaintiff's work consisted almost entirely of
56-hour shifts at the Nevada Group Home, one of several
facilities operated by defendants. Id. at 2,
employed with defendant, plaintiff worked under the
“Continuous Shift Policy, ” whereby an employee
worked approximately fifty-six consecutive hours before being
relieved by another employee. Id. at 3, ¶ 15.
Plaintiff states that she was only paid for forty of the
fifty-six hours she worked for each shift. Id. at 5,
alleges that defendants failed to adequately compensate
plaintiff for certain categories of time including time spent
communicating with other workers at the beginning and end of
her shifts, id. at 5, ¶¶ 34-35; sleep
time, which was regularly interrupted such that plaintiff did
not usually get five hours of continuous and uninterrupted
sleep, id. at 9, ¶ 59; and extra time worked as
a result of the change to daylight savings time.
Id., ¶¶ 60-61. Plaintiff also alleges that
the sleeping facilities provided by defendants were
inadequate because they were not private quarters, separated
from the residents of the group home. Id. at 10,
¶ 66-67. Plaintiff claims that the staff room set aside
for sleeping did not have amenities for recreation, offered
little privacy, was illuminated by hallway lights, and that
the residents of the group home would enter her sleeping
quarters without permission. Id. at 10-12,
¶¶ 66-74. Plaintiff states that she never entered
into a formal agreement with defendants to deduct sixteen
hours of sleep time from her paychecks. Id. at 12,
¶ 76. Plaintiff alleges that, “on several
occasions [she] objected to Defendants' failure to
compensate her for the nighttime hours during her Continuous
Shifts.” Id. at 13, ¶ 81.
14, 2016, plaintiff filed this action. Docket No. 1.
Plaintiff seeks relief under the Colorado Minimum Wage Act,
Colo. Rev. Stat. §§ 8-4-101, et seq., and Colorado
Minimum Wage Order, 7 Colo. Code Regs. § 1103-1 (first
claim for relief); under the Fair Labor Standards Act (FLSA),
29 U.S.C. § 201, et seq. (second claim for relief); and
equitable relief under Colorado law (third claim for relief).
Docket No. 33 at 18-21, ¶¶ 114-35. Plaintiff brings
her FLSA claim as a collective action pursuant to 29 U.S.C.
§ 216(b), alleging that members of the potential
collective all suffered from defendants' policies of (1)
not paying for night duty work, (2) not paying for an extra
hour on the night of daylight savings, and (3) not paying for
time at the beginning and end of each shift where employees
were required to pass along information to workers on the
next shift. Id. at 17-18, ¶¶ 110-13.
August 22, 2018, plaintiff moved for conditional collective
certification on the FLSA claim. Docket No. 85. Plaintiff
also requests that the Court approve her proposed notice
plan. Docket Nos. 85-2 and 85-3. Defendants oppose the
motion. Docket No. 93.
asks the Court to conditionally certify this case as a
collective action pursuant to § 216(b) of the FLSA,
which provides in pertinent part:
Any employer who violates the provisions of . . . section 207
of this title shall be liable to the employee or employees
affected in the amount of . . . their unpaid overtime
compensation, . . . and in an additional equal amount as
liquidated damages. . . . An action to recover the liability
prescribed in [section 207] may be maintained against any
employer . . . in any Federal . . . court of competent
jurisdiction by any one or more employees for and in
behalf of himself or themselves and other employees similarly
29 U.S.C. § 216(b) (emphasis added). There is a two-step
approach for determining whether plaintiffs are
“similarly situated” for purposes of FLSA
collective action certification. Thiessen v. GE Capital
Corp., 267 F.3d 1095, 1105 (10th Cir.
2001). A court's initial certification comes
at the notice stage, where courts determine whether
plaintiffs are similarly situated for purposes of sending
notice to putative class members. Id. at 1102.
Plaintiff is required to provide “nothing more than
substantial allegations that the putative class members were
together the victims of a single decision, policy or
plan.” Id.; see also Stransky v. HealthONE
of Denver, Inc., No. 11-cv-02888-WJM-MJW, 2012 WL
6548108, at *4 (D. Colo. Dec. 14, 2012). This is a
“lenient” standard, Baldozier v. Am. Family
Mut. Ins. Co., 375 F.Supp.2d 1089, 1092 (D. Colo. 2005),
“which typically results in conditional certification
of a representative class.” Renfro v. Spartan
Computer Servs., Inc., 243 F.R.D. 431, 432 (D. Kan.
2007). The second stage, which comes at the conclusion of
discovery, applies a stricter standard of “similarly
situated, ” including application of at least four
factors, to determine whether the case can proceed as a
collective action. Thiessen, 267 F.3d at 1102-03.
seeks to represent a class consisting of “[a]ll current
and former employees who worked for either [d]efendant under
the Continuous Shift Policy at any time from July 14, 2013 to
present.” Docket No. 85 at 5. Plaintiff claims that,
under the Continuous Shift Policy, defendants failed to pay
her and other employees working under the Continuous Shift
Policy for sixteen of the fifty-six hours worked on each
shift. Docket No. 33 at 5, ¶ 30. Plaintiff further