Barajas v. Acosta, 4:11-cv-03862

Plaintiffs seek conditional certification under the FLSA for a collective action against Defendants who operate Mexican restaurants and food trucks in Houston, Texas.
Plaintiffs allege Defendants violated the FLSA by paying less than minimum wage and failing to pay overtime.
Plaintiffs worked more than 40 hours per week; pay ranged from $350 to $475 weekly, with no overtime and no wage variation by hours.
Many employees reportedly worked about seventy-two hours per week for roughly $450, equating to about $6.25 per hour.
Plaintiffs propose a class of all individuals who, in the prior three years, worked for Defendants and were paid below minimum wage or below one-and-one-half times their regular rate for overtime.
Defendants oppose conditional certification, arguing lack of identified opt-in plaintiffs and unacceptable notice procedures.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether conditional certification is warranted based on similarly situated aggrieved employees	Plaintiffs show more than twenty opt-ins and affidavits suggesting others wish to join.	Defendants contend no clearly identified opt-in plaintiffs.	Yes; court grants conditional certification in part.
Whether notice and posting of notice to potential class members are appropriate	Notice and posting are necessary to inform potential opt-ins; posting is permissible.	Posting would violate First Amendment rights.	Notice approved; posting allowed after First Amendment consideration.
Whether the notice should be modified and what timelines apply	Proposed notice should stand with minor textual modifications.	No changes or stricter language requested.	Modify notice as described and set 45-day opt-in period; post for 45 days; provide names/addresses within 7 days.

Shushan v. Univ. of Colo. at Boulder, 132 F.R.D. 263 (D. Colo. 1990) (two-step analysis for conditional certification (Lusardi approach) foundational)
Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987) (two-step standard for conditional certification under FLSA)
Mooney v. Aramco Servs. Co., 54 F.3d 1207 (5th Cir. 1995) (courts use Lusardi approach in Fifth Circuit for conditional certification)
Aguirre v. SBC Communications, Inc., 2006 WL 964554 (S.D. Tex. 2006) (cited for first-step criteria; WL not reporter so omitted in list?)
Maynor v. Dow Chem. Co., 2008 WL 2220394 (S.D. Tex. 2008) (cited for admissibility of evidence at first stage; WL not reporter)
McKnight v. D. Houston, Inc., 756 F. Supp. 2d 794 (S.D. Tex. 2010) (example supporting need for some potential opt-ins)
England v. New Century Fin. Corp., 370 F. Supp. 2d 504 (M.D. La. 2005) (authority on FLSA collective action certification)
In re Domestic Air Transp. Antitrust Litig., 141 F.R.D. 534 (N.D. Ga. 1992) (notice in class action under Rule 23 context; relevance to notice)
Lake Butler Apparel Co. v. Sec’y of Labor, 519 F.2d 84 (5th Cir. 1975) (posting notices in locations accessible to employees)
Baldridge v. SBC Commc’ns, Inc., 404 F.3d 930 (5th Cir. 2005) (factors for similarly situated determination)
Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165 (1989) (notice and remedial goals of FLSA collective actions)