Brayman v. Keypoint Government Solutions, Inc.

          ORDER ON PENDING MOTIONS REGARDING SCOPE OF NOTICE

          William J. Martinez, United States District Judge.

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

         This case has been mired in disputes over conditional collective action certification. The latest disputes come to the Court through two pending motions: (1) the parties Joint Motion for Clarification of Scope of Notice List (“Motion to Clarify”) (ECF No. 157); and (2) Brayman's Motion to Enforce Court Order (“Motion to Enforce”) (ECF No. 198). For the reasons explained below, the Motion to Clarify (which contains both sides' arguments in a single motion) is granted in favor of Brayman, and the Motion to Enforce is granted. The Court will also reformulate the collective action definition.

         I. BACKGROUND

         Brayman filed this lawsuit on March 8, 2018. (ECF No. 1.) She asked that the Court certify an FLSA collective action defined as follows: “All persons who worked as Field Investigators, Background Investigators, or in other positions with similar job duties, for Defendant at any time during the last three years prior to the filing of this Complaint through the entry of judgment.” (Id. ¶ 12.) Brayman moved for conditional collective certification on April 6, 2018, proposing the same definition. (ECF No. 22 at 2-3.)

         The Court granted conditional collective certification on November 1, 2018. See Brayman v. KeyPoint Gov't Sols., Inc., 2018 WL 5776373 (D. Colo. Nov. 1, 2018) (ECF No. 69) (“Brayman I”). The Court adopted Brayman's proposed definition, except that (i) the Court filled in a specific beginning date, rather than relying on “three years prior to the filing of this Complaint”; (ii) the Court named the defendant, rather than relying on a generic reference to “Defendant”; and (iii) the Court substituted “to present” for “through the entry of judgment.” Thus, the Court-approved definition reads as follows: “All persons who worked as Field Investigators, Background Investigators, or in other positions with similar job duties, for Defendant KeyPoint Government Solutions Inc. at any time from March 8, 2015 to present.” Id. at *8.

         In the same order, the Court ruled that notice of conditional certification could be sent to those within the collective definition who had signed arbitration agreements with class/collective action waivers. Id. at *6-7. That prompted KeyPoint to move for reconsideration. (ECF No. 73.)

         On August 7, 2019, the Court resolved KeyPoint's motion for consideration. See Brayman v. KeyPoint Gov't Sols., Inc., 2019 WL 3714773 (D. Colo. Aug. 7, 2019) (ECF No. 149) (“Brayman II”). The Court granted reconsideration to the extent the Court held that potential collective action members who had signed arbitration agreements should not receive notice of conditional certification, because it had become clear that their challenges to their arbitration agreements were directed at matters other than the class/collective action waiver. Id. at *6-7. As for everyone else, the Court ordered the parties to submit a proposed notice and consent-to-join form by August 23, 2019. Id. at *9. The Court also ordered that the two/three-year FLSA statute of limitations would be tolled “from April 6, 2018, through the end of the opt-in period (to be established when the Court approves the notice procedures).” Id. at *10.

         On the appointed date, the parties submitted an agreed-upon proposed notice and consent-to-join form. (ECF No. 155.) The proposed notice addresses itself to “[a]ny individual who works or worked for KeyPoint Government Solutions, Inc. as a Field Investigator, Background Investigator, or in other positions with similar job duties from April 6, 2015 to the present.” (ECF No. 155-1 at 1.) It also establishes a sixty-day window in which those interested in joining the lawsuit must return their consent-to-join forms. (Id. at 2.)

         The parties apparently agreed on April 6, 2015 as the relevant start date (three years before the beginning of equitable tolling), rather than March 8, 2015 (the start date certified by the Court in Brayman I, calculated as three years before Brayman filed the complaint), because, practically speaking, any claim accruing before April 6, 2015 would already be time-barred.

         On August 28, 2019, the Court approved the parties' proposed forms with only a minor modification that is not relevant here. (ECF No. 156.) In that same order, the Court required KeyPoint to produce contact information by September 18, 2019 for those employees within the collective action definition who did not sign an arbitration agreement. (Id.)

         On August 30, 2019, the parties filed the Motion to Clarify. (ECF No. 157.) The basic dispute framed in this motion is what the phrase “who worked as” means in the conditional collective definition announced in Brayman I (i.e., “All persons who worked as Field Investigators, Background Investigators, or in other positions with similar job duties, for Defendant . . .”). According to Brayman, it means something like “who had been hired to be.” (Id. at 2-4.) According to KeyPoint, it means “who had clocked in as.” (Id. at 5-8.) The parties say that this dispute affects at least 1, 300 potential collective action members. (Id. at 2, 7.)

         On October 31, 2019, Brayman filed the Motion to Enforce. (ECF No. 198.) There, Brayman's counsel recounts receiving a communication directly from a KeyPoint employee that had heard of the collective action through a coworker but had not received a notice or consent-to-join form. (Id. at 4.) Brayman's counsel believed that this employee fit the definition of the conditionally certified collective action, and so asked KeyPoint why no notice or consent-to-join form had been mailed to him. (Id.) KeyPoint responded that the employee in question was hired after November 1, 2018- the date the Court issued Brayman I-and so, in KeyPoint's view, had not worked for KeyPoint “from April 6, 2015 to the present”-interpreting “the present” to mean November 1, 2018. (Id.) The Motion to Enforce thus raises the issue of what “present” means in Brayman I.

         II. ...