LEVECQUE v. ARGO MARKETING GROUP INC, 2:14-cv-00218

Background

Plaintiffs are current and former Argo Marketing Group call-center employees who sued under the FLSA for unpaid overtime, alleging unpaid “lag time” during software log‑ins, unpaid bathroom breaks, and unpaid rest breaks.
Five named plaintiffs filed a collective action; six individuals have already filed opt‑in consents. Plaintiffs moved for conditional certification and court‑facilitated notice; Defendants opposed.
Plaintiffs submitted four affidavits (plus one supplement) mainly from Portland and Pittsfield employees describing common time‑keeping practices and alleged unpaid time; Defendants submitted declarations (including Lewiston employees and management) asserting written policies, training, and that no systemic unpaid time existed.
The district court applied the two‑stage (conditional/decertification) FLSA framework and the lenient “modest factual showing” standard for conditional certification at the notice stage.
The court granted conditional certification for a collective including customer service representatives and sales personnel at all Argo Maine locations (Portland, Pittsfield, Lewiston) and those working from home, using a three‑year limitations window to facilitate notice.
The court denied Plaintiffs’ request to appoint class representatives and class counsel and directed the parties to meet and confer on the form of notice under Hoffman‑LaRoche.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether conditional certification for FLSA collective is appropriate	LeVecque: modest factual showing via affidavits that similarly situated employees exist and share a common unlawful practice (unpaid lag time, breaks).	Argo: plaintiffs’ few affidavits are insufficient; lawful written policies and training exist and any violations were isolated at smaller locations.	Granted: court found plaintiffs met the lenient ‘‘modest factual showing’’ standard for conditional certification.
Geographic scope — extend notice to Lewiston and remote workers	Plaintiffs: declarations state locations operated similarly; at least one declarant known of company‑wide policies.	Argo: plaintiffs lack firsthand Lewiston evidence; conditions may vary by site.	Granted: court concluded affidavits were sufficient at notice stage to include Lewiston and at‑home workers; differences better addressed at decertification.
Inclusion of sales personnel in collective	Plaintiffs: sales duties overlap with customer service; at least one declarant worked as sales and reported same unpaid time.	Argo: duties/pay differ; inclusion would be improper without stronger proof.	Granted: court found a modest showing that sales personnel are similarly situated for conditional certification.
Impact of Supreme Court decisions (Comcast, RBS Citizens) on FLSA conditional certification	Plaintiffs: Comcast concerns are Rule 23 matters and inapplicable to the FLSA’s more lenient standard at the notice stage.	Argo: Comcast/RBS require more rigorous class scrutiny, including on damages and individualized issues.	Denied for defendants: court held Comcast/RBS do not alter FLSA two‑stage, lenient notice‑stage analysis.

Key Cases Cited

Prescott v. Prudential Ins. Co., 729 F. Supp. 2d 357 (D. Me. 2010) (explains two‑stage FLSA collective certification and applies a lenient notice‑stage standard)
Hoffman‑La Roche Inc. v. Sperling, 493 U.S. 165 (1989) (district courts may facilitate judicial oversight of notice to potential FLSA plaintiffs)
Sandoz v. Cingular Wireless LLC, 553 F.3d 913 (5th Cir. 2008) (describes two‑stage collective action framework)
Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208 (11th Cir. 2001) (discusses lenient initial notice‑stage standard for collective actions)
Comer v. Wal‑Mart Stores, Inc., 454 F.3d 544 (6th Cir. 2006) (articulates modest factual showing needed at notice stage)
O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567 (6th Cir. 2009) (factors for decertification/second‑stage analysis)
Thiessen v. GE Capital Corp., 267 F.3d 1095 (10th Cir. 2001) (employees similarly situated are those victimized by a common decision, policy, or plan)
Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) (Rule 23 class‑certification rigor on damages; court held it does not control FLSA notice‑stage)
RBS Citizens, N.A. v. Ross, 133 S. Ct. 1722 (2013) (mem. decision remanding in light of Comcast)