Hernandez v. Robert Dering Construction, LLC
191 F. Supp. 3d 675
S.D. Tex.2016Background
- Plaintiffs (five Spanish‑speaking former laborers) sued Robert Dering Construction, LLC (RDC) under the FLSA, alleging misclassification as independent contractors and failure to pay minimum wage/overtime (straight‑time pay for hours over 40).
- Plaintiffs submitted declarations alleging identical job duties (manual construction tasks) and identical pay practices (no overtime); no opt‑in plaintiffs had joined at the time of the motion.
- Plaintiffs moved for conditional certification and court‑approved notice under 29 U.S.C. § 216(b), seeking RDC employee contact information and a 90‑day opt‑in period.
- RDC opposed, arguing a heightened Lusardi standard should apply because some discovery occurred, that plaintiffs failed to identify other aggrieved individuals who want to join, and that plaintiffs are not similarly situated on the employee issue.
- The court applied the Lusardi two‑stage approach at the lenient notice stage, found plaintiffs’ declarations and interrogatory responses sufficient to show a reasonable basis that other aggrieved, similarly situated individuals exist, and denied RDC’s motion to strike reply exhibits as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conditional certification (notice stage) is appropriate | Declarations and discovery responses show multiple laborers were paid straight time and misclassified, justifying notice | Some discovery exists so a heightened Lusardi standard should apply; plaintiffs failed to show other aggrieved individuals want to opt in; not similarly situated on employee status | Granted conditional certification under the ordinary Lusardi notice‑stage standard — plaintiffs met the lenient showing that similarly situated aggrieved individuals exist |
| Whether plaintiffs provided reasonable basis that other aggrieved individuals exist | Plaintiffs produced sworn statements identifying co‑workers and interrogatory responses naming potential class members | RDC argued absence of opt‑in plaintiffs and challenged new reply evidence | Court found declarations and responses sufficient to establish a reasonable basis that others exist |
| Whether plaintiffs are similarly situated (job duties and pay provisions) | Plaintiffs asserted common job duties as laborers and common pay practice (straight time for overtime hours) | RDC disputed that plaintiffs were employees (vs. contractors) and that a common policy existed | Court held plaintiffs provided sufficient evidence that putative members are similarly situated in job requirements and payment provisions |
| Whether exhibits filed with reply should be struck | Plaintiffs argued reply exhibits clarified earlier allegations and were permissible | RDC moved to strike/new evidence because local rule requires filings of evidentiary materials with initial motion | Court overruled/denied as moot and stated additional declarations merely clarified earlier allegations |
Key Cases Cited
- Hoffmann‑La Roche Inc. v. Sperling, 493 U.S. 165 (Court has discretion to approve collective action notice; collective actions promote efficient resolution)
- Mooney v. Aramco Servs. Co., 54 F.3d 1207 (5th Cir. 1995) (discusses two common approaches for § 216(b) similarly situated analysis)
- Sandoz v. Cingular Wireless LLC, 553 F.3d 913 (5th Cir. 2008) (describes Lusardi two‑stage approach and lenient notice stage)
- Baldridge v. SBC Commc’ns, Inc., 404 F.3d 930 (5th Cir. 2005) (court may limit scope of collective action definition)
- Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987) (establishes two‑step notice/decertification framework used at notice stage)
- Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (Supreme Court 1985) (FLSA should be liberally construed to effectuate its purposes)