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Sanders v. Glendale Restaurant Concepts, LP

United States District Court, D. Colorado

December 13, 2019

JONATHAN SANDERS, individually and on behalf of all others similarly situated, Plaintiff,
v.
GLENDALE RESTAURANT CONCEPTS, LP, Defendant.

          ORDER ON MOTION FOR CONDITIONAL CERTIFICATION AS A COLLECTIVE ACTION AND NOTICE TO CLASS MEMBERS

          Nina Y. Wang United States Magistrate Judge

         This matter comes before the court on the Parties' “Joint Stipulation Regarding Conditional Certification and Notice to Class Members” (“Motion” or “Motion for Conditional Certification”), which seeks conditional certification and notice pursuant to 29 U.S.C. § 216(b). [#33, filed November 27, 2019]. Pursuant to the Order of Reference dated November 5, 2019 [#30], this civil action was assigned to the undersigned Magistrate Judge for all purposes. See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73; D.C.COLO.LCivR 72.2. The court has carefully reviewed the Motion and associated briefing, the entire case file, and the applicable law, and concludes that oral argument will not materially assist in the resolution of this matter. For the reasons stated herein, the court GRANTS IN PART and DENIES IN PART the Motion.

         BACKGROUND

         Plaintiff Jonathan Sanders (“Plaintiff” or “Mr. Sanders”) initiated this action on behalf of himself and all other similarly situated persons that are or were valet drivers at Defendant Glendale Restaurant Concepts, LP's (“Defendant” or “Glendale Restaurant Concepts”) adult entertainment clubs within the last two years. See generally [#1].

         Plaintiff, a Colorado resident, allegedly performed valet services for Defendant at its adult entertainment clubs from approximately December 2016 through October 2018 in Denver, Colorado. [#1 at ¶¶ 7, 8]. He alleges that, like all valet drivers for Glendale Restaurant Concepts, he was misclassified by Defendant as “exempt” from the overtime requirements of the FLSA and routinely denied any wages at all for hours worked, despite working approximately forty hours each workweek and oftentimes more than forty hours each week. See generally [#1]. Plaintiff alleges that Defendant “set the rules and had complete control over the venue where Plaintiff worked, ” and “provided the tools needed to provide valet services, including but not limited to communication devices and a valet podium.” [Id. at ¶¶ 31, 32]. Plaintiff “had to follow Defendant[‘s] rules or risk loss of some or all of his tips.” [Id. at ¶ 33].

         Plaintiff initiated this action on June 26, 2019. See [id.]. Pertinent here, Plaintiff asserts that Defendant violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., for not paying Plaintiff, or any of its valet drivers, overtime compensation for hours worked in excess of forty or the federally mandated minimum wage. See [#1 at ¶¶ 56-68]. The undersigned held an initial Scheduling Conference with the Parties on October 24, 2019. See [#27]. At the Scheduling Conference, the Parties discussed the filing of a motion for collective action and, thus, the court set a December 2, 2019 deadline by which Plaintiff was to file his Motion for Conditional Certification and set a telephonic Status Conference for February 4, 2020. See [id.].

         Plaintiff filed the instant Motion for Conditional Certification and Notice to Class Members on November 27, 2019. See [#33]. As explained above, Plaintiff filed his Motion as a “Joint Stipulation” and stated therein that “the parties respectfully request that the Court enter an order approving the terms of th[e] Stipulation . . . and approving the Notice, Consent, Electronic Notice, Electronic Consent, and Reminder Notice attached” thereto. [Id. at 3]. Accordingly, the Motion for Conditional Certification is now ripe for determination.

         LEGAL STANDARD

         The FLSA governs the payment of minimum wages and overtime compensation between an employer and its employees. See29 U.S.C. §§ 206-207. Under the statute a covered employer must pay its employees for the time that it employs them, and the FLSA generally requires covered employers to compensate employees for work in excess of forty hours in a work week. See 29 U.S.C. §§ 206(a), 207(a). The required overtime compensation is one and one-half times an employee's “regular rate” of pay. 29 U.S.C. § 207(e). The FLSA defines an “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). The FLSA “defines the verb ‘employ' expansively to mean ‘suffer or permit to work.'” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326 (1992) (quoting 29 U.S.C. § 203(g)).

         Section 216(b) of the FLSA authorizes private individuals to recover damages for violations of minimum wage and overtime provisions. It provides in relevant part that “[a]n action to recover the liability [for unpaid overtime compensation] may be maintained against any employer . . . in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). The FLSA thus provides plaintiffs the opportunity to proceed collectively, which allows “plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources.” Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989) (interpreting the ADEA, which explicitly incorporates the collective action provisions of the FLSA). “The trial court is tasked with determining who is ‘similarly situated' for purposes of a § 216(b) claim in a ‘manner that is orderly, sensible, and not otherwise contrary to statutory commands or the provisions of the Federal Rules of Civil Procedure.'” Pena v. Home Care of Denver, LLC, No. 19-cv-00069-CMA-NYW, 2019 WL 5577947, at *1 (D. Colo. Oct. 29, 2019) (quoting Hoffmann-LaRoche, 493 U.S. 165 at 170-72). Plaintiffs who wish to participate in an FLSA collective action must opt into the action. 29 U.S.C. § 216(b) (“No employee shall be a party plaintiff to any such 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.”). See also In re Am. Family Mut. Ins. Co. Overtime Pay Litigation, 638 F.Supp.2d 1290, 1298 (D. Colo. 2009).

         In Thiessen v. General Electric Capital Corp., the Tenth Circuit approved a two-step process, known as the ad hoc approach, for determining whether putative collective members are similarly situated to the named plaintiff. 267 F.3d 1095, 1105 (10th Cir. 2001). Pursuant to this approach, the trial court determines at the initial “notice stage” whether the plaintiff has asserted “substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Id. at 1102. During the second stage in the ad hoc approach, after discovery has concluded and often prompted by a motion to decertify, the court applies a stricter standard to determine whether the action should continue as a collective action. In particular, the court must evaluate the “disparate factual and employment settings of the individual plaintiffs; the various defenses available to defendant which appear to be individual to each plaintiff; fairness and procedural considerations; and whether plaintiffs made [any required filings] before instituting suit.” Id. at 1103 (citing Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 678 (D. Colo. 1997)). Numerous courts in this District have followed this ad hoc approach in determining whether plaintiffs can move forward collectively under the FLSA. See, e.g., Pena, 2019 WL 5577947; Baldozier v. Am. Family Mut. Ins. Co., 375 F.Supp.2d 1089, 1092 (D. Colo. 2005); but see Turner v. Chipotle Mexican Grill, Inc., 123 F.Supp.3d, 1300, 1309 (D. Colo. 2015) (rejecting the two-step process in favor an approach that allowed “workers bringing the same statutory claim against the same employer to join as a collective, with the understanding that individuals may be challenged and severed from the collective if the basis for their joinder proves erroneous.”).[1]

         Here, given the Parties' Stipulation, it appears that they agree that the two-step ad hoc procedure is appropriate, and the only issue before the court at this juncture is whether their proposed Notices to potential members of the collective and the proposed Consent to Join Collective Action are appropriate. The court considers these issues below.

         ANALYSIS

         I. ...


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