Fenley v. Wood Group Mustang, Inc.
170 F. Supp. 3d 1063
S.D. Ohio2016Background
- Plaintiff, a former WGM welding inspector, brought an FLSA collective action (and parallel Ohio claim) alleging Inspectors classified as "DAY — Non Exempt Day Rate" were paid a day rate that did not account for overtime and routinely worked over 40 hours/week without overtime pay.
- Limited discovery (pay records, policies, corporate rep deposition) showed Inspectors were uniformly coded as "DAY" and WGM’s overtime policy described day rates as "inclusive of all hours worked, including overtime."
- Plaintiff amended the putative collective to: all current/former employees with pay code "DAY — Non Exempt Day Rate" who worked in WGM’s Pipeline Services Inspection Department as inspectors in the U.S. during the 3 years prior to the Court’s order; ~37 have already opted in and Plaintiff estimates ~940 potential Inspectors.
- Plaintiff moved for conditional certification and court-supervised notice; also moved to equitably toll the statute of limitations during the certification briefing period. WGM opposed both motions and challenged aspects of the proposed notice.
- The Court granted conditional certification (finding the evidence—declarations, payroll codes, policy, corporate testimony—sufficient at this stage), approved a 90-day notice period sent by e-mail and ordinary mail (single round; no reminder or workplace postings), required notice language revisions (clarify right to choose counsel; include potential liability for costs), denied equitable tolling for the class but ordered notice sent to Inspectors employed since September 8, 2012.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Conditional certification under 29 U.S.C. § 216(b) | Evidence (pay codes, policy, declarations, corporate depo) shows Inspectors are similarly situated and a collective should be conditionally certified | Individualized exemptions and varied job titles/clients make plaintiffs dissimilar and merit issues predominate | Granted: plaintiff met the lenient/intermediate showing that soliciting opt-ins is likely to uncover similarly situated individuals |
| Scope and content of court‑supervised Notice (breadth; right to counsel; warning about statute of limitations) | Proposed notice appropriately describes class and warns potential opt‑ins about time limits; directs how to contact plaintiff’s counsel | Notice is too broad, improperly directs potential plaintiffs to plaintiff’s counsel, and may mislead about expiration of claims | Modified and approved: breadth matches class; must emphasize right to select independent counsel; may notify that claims can expire; Court found language not misleading |
| Notice methods, posting, and duration (email/mail, reminder, workplace posting, length) | Dual-method email and ordinary mail plus 90-day period justified by workers’ mobility; requests reminder and workplace posting | Dual rounds/reminder/posting are excessive and may suggest court endorsement | Approved email + ordinary mail once; denied reminder notice and workplace postings; 90-day opt-in period approved |
| Equitable tolling of statute of limitations for all potential opt‑ins | Toll limitations from filing/briefing date to ten days after certification order to avoid loss of claims | Equitable tolling is individualized, not appropriate for group tolling; FLSA contemplates delay and opt‑ins run their own limitations | Denied: equitable tolling for all putative plaintiffs refused as an improper group remedy; Court nonetheless ordered notice to Inspectors going back to Sept. 8, 2012 to permit potential individually entitled plaintiffs to opt in |
Key Cases Cited
- Comer v. Wal-Mart Stores, Inc., 454 F.3d 544 (6th Cir. 2006) (two-stage FLSA collective action framework; similarly situated and opt-in consent required)
- O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567 (6th Cir. 2009) (proof of single FLSA‑violating policy may support similarity; unified policy not required at notice stage)
- Hoffmann‑La Roche Inc. v. Sperling, 493 U.S. 165 (1989) (courts may facilitate notice but must avoid suggesting endorsement of claims)
- Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147 (1984) (equitable tolling is an extraordinary remedy to be sparingly applied)
- Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990) (equitable tolling generally available only in extraordinary circumstances)
- Cook v. Commissioner of Social Sec., 480 F.3d 432 (6th Cir. 2007) (articulates multi‑factor test applied by Sixth Circuit for equitable tolling)