United States District Court, D. Colorado
RACHEL BRAYMAN, on behalf of herself and all similarly situated persons, Plaintiff,
v.
KEYPOINT GOVERNMENT SOLUTIONS, INC., a Delaware corporation, Defendant.
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.
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