United States District Court, D. Colorado
JONATHAN SANDERS, individually and on behalf of all others similarly situated, Plaintiff,
GLENDALE RESTAURANT CONCEPTS, LP, Defendant.
ORDER ON MOTION FOR CONDITIONAL CERTIFICATION AS A
COLLECTIVE ACTION AND NOTICE TO CLASS MEMBERS
Y. Wang United States Magistrate Judge
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.
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].
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
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.].
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.
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)).
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).
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
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