Aldama v. Fat Alley, Inc.

          ORDER GRANTING PLAINTIFF’S MOTION FOR CONDITIONAL COLLECTIVE ACTION CERTIFICATION

          William J. Martínez, United States District Judge.

         Plaintiff Diogenes Aldama brings this action against Fat Alley, Inc. (also known as “Oak” or “the New Fat Alley, ” and referred to below as “Oak/New Fat Alley”) and Robert E. O’Dell (together, Defendants”) for alleged violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., and similar Colorado state laws. (ECF No. 1 ¶¶ 3–5, 13.) Aldama alleges that he was employed as a restaurant worker at Oak/New Fat Alley, and Defendants failed to pay him overtime wages as required by the FLSA and Colorado state law.

         Currently before the Court is Plaintiff’s Motion for Conditional Collective Action Certification (the “Motion”). (ECF No. 3.) In their Response to the Motion, Defendants stipulated that collective action certification is appropriate under the FLSA, but raised objections to the collective action definition, the form of notice, and the method of notice. (ECF No. 34.) In his Reply, Plaintiff agreed to revise the proposed notice, but objected to Defendant’s revised collective action definition and proposed limitations on the notice procedures. (ECF No. 35.) For the reasons explained below, the Court certifies the collective action and approves the notice form and procedure, as modified by the Court.

         I. BACKGROUND

         The following facts are drawn from Plaintiff’s Complaint. (ECF Nos. 1 & 3.)

         Plaintiff alleges that he and his fellow restaurant workers at Oak/New Fat Alley regularly worked more than 40 hours each workweek and, during “festival season” in Telluride, worked more than twelve hours per day. (ECF No. 1 ¶ 14.) He claims that he normally worked 60 hours per week (twelve hours per day, five days a week) and that Defendants hid his overtime hours by issuing two-week paychecks showing 80 hours of work and paying him cash at his regular rate for overtime. (Id. ¶ 15.) Plaintiff also claims that during festival season, he worked approximately 75 hours per week (fifteen hours per day, five days per week) and was paid for his overtime hours off the books at his regular rate. (Id. ¶ 16.) According to the Complaint, Defendants refused to pay any of their hourly employees overtime wages for overtime hours worked, and instead paid them in the same way they paid Plaintiff. (Id. ¶ 14.) Plaintiff spoke to several other hourly employees, who confirmed that they were paid in a manner similar to Plaintiff. (Id. ¶ 20.) Plaintiff filed this lawsuit on February 22, 2019.

         II. LEGAL STANDARD

         The FLSA permits collective actions where the 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 in the FLSA context). The standard for certification at this stage is a lenient one. See Thiessen, 267 F.3d at 1103; Williams v. Sprint/United Management Co., 222 F.R.D. 483, 485 (D. Kan. 2004).

         If a plaintiff meets this standard, the Court may order the defendant to provide contact information for employees that may be eligible to participate in the collective action, and 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 usually required 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

         A. Collective Action Certification

         Defendants do not contest that conditional collective action certification under the FLSA is appropriate. (ECF No. 34 at 3.) Plaintiff alleges that he personally was not paid overtime, and that Defendants failed to properly pay other hourly employees for overtime hours worked. These allegations are sufficient to establish that the potential collective action members were subject to “a single decision, policy, or plan” giving rise to their claims. See Thiessen, 267 F.3d at 1103.

         Given Defendant’s non-opposition to conditional collective action certification, and upon independent review, the Court finds that Plaintiff has made allegations sufficient to meet the lenient standard for FLSA collective action certification. See Thiessen, 267 F.3d at 1103.

         Plaintiff asks the Court to define the collective class as “All hourly employees who worked on or after February 22, 2016.” (ECF No. 3 at 2.) Defendants argue that the definition is overbroad because Oak/New Fat Alley “changed its pay policy on February 1, 2019, and now pays all hourly employees the applicable overtime rate for overtime hours via the employees’ paycheck.” (ECF No. 34 at 3.) Thus, Defendants argue, those who began working at Oak/New Fat Alley after February 1, 2019, are not similarly situated to Plaintiff. Defendants do not, however, offer any evidentiary support that they changed their pay practices on February 1, 2019. The quotation above is merely attorney argument, which is not evidence. Absent some evidence to contradict Plaintiffs’ well-pled allegations, the Court will not limit the collective action definition in the manner Defendants request. Accordingly, the Court will conditionally certify the collective action as “All ...