Colley v. Scherzinger Corp.
176 F. Supp. 3d 730
S.D. Ohio2016Background
- Plaintiff Robert Colley, a former Scherzinger technician (2012–2015), sued under the FLSA and state wage laws alleging unpaid overtime after Scherzinger adopted a December 2012 Universal Technician Pay Scale that classified technicians as exempt and paid by commission/draw.
- Colley seeks conditional certification of an FLSA collective of all employees paid under the Universal Technician Pay Scale within three years before opt-in.
- Colley submitted a declaration stating technicians’ hours were no longer tracked, overtime premiums ceased, many technicians were paid low effective hourly rates, and numerous coworkers are interested in joining.
- Scherzinger submitted a declaration explaining the pay plan (commission rate tied to tenure, weekly production base and draw) and contending technicians must log hours in a company mobile app; it also asserted that 51 of 82 potential class members signed arbitration agreements with class/collective waivers.
- At this early stage (five days after complaint; two opt-ins filed), the Court applied the Sixth Circuit’s lenient conditional-certification standard and declined to resolve merits defenses (e.g., Section 7(i) exemption, validity of arbitration agreements).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conditional certification under 29 U.S.C. § 216(b) is appropriate | Colley: universal pay scale created a common FLSA claim; modest factual showing suffices | Scherzinger: individualized inquiries (e.g., application of §7(i) exemption, hours/compensation calculations) preclude collective treatment | Court: Granted conditional certification — plaintiffs similarly situated at this stage; merits and individualized defenses reserved |
| Effect of arbitration agreements signed by many technicians | Colley: agreements may be fraudulently induced; FLSA rights nonwaivable; issue goes to merits | Scherzinger: arbitration/class-waiver agreements bar those employees from participating | Court: Declined to exclude signatories at conditional stage; validity/enforceability is a merits question for later resolution |
| Appropriate statute-of-limitations period for notice (two vs three years) | Colley: three-year period proper because willfulness not resolved and is a merits question | Scherzinger: only two years unless willful violation shown; Althaus declaration denies willfulness | Court: Adopted three-year notice window; willfulness unresolved and unsuitable for early resolution |
| Content and form of court-authorized notice and consent form | Colley: proposed notice, includes caption, three-year period, and explanation that signatories may later be compelled to arbitrate | Scherzinger: objected to caption, three-year span, wording, bolding of anti-retaliation, and consent-form language | Court: Overruled most objections; kept caption, three-year period, permitted added defendant-denial paragraph in description, included language about possible later arbitration, upheld bold anti-retaliation text, and required consent-form modifications agreed by parties |
Key Cases Cited
- Comer v. Wal-Mart Stores, Inc., 454 F.3d 544 (6th Cir.) (establishes lenient early-stage standard for showing plaintiffs are "similarly situated" under §216(b))
- O'Brien v. Ed Donnelly Enters., 575 F.3d 567 (6th Cir.) (explains that collective action plaintiffs need common theory of FLSA violation; modest factual showing suffices)
- Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728 (1981) (holds FLSA rights are nonwaivable)
- Swigart v. Fifth Third Bank, 276 F.R.D. 210 (S.D. Ohio 2011) (approved conditional certification and addressed notice language where employer asserted exemptions and prior releases)