220 F. Supp. 3d 1074
D. Colo.2016Background
- CreativExteriors (CE) hired seasonal landscape laborers (both U.S. and foreign) from 2010–2015; plaintiff Torres‑Vallejo is a Mexican H‑2B worker who worked for CE 2012–2015.
- CE obtained DOL prevailing‑wage certifications for H‑2B positions; plaintiff alleges CE agreed (by certification) to pay the DOL‑determined prevailing wage.
- Plaintiff alleges underpayment in multiple ways: unreimbursed visa/travel/uniform costs (de facto wage deductions), uncompensated loading/unloading and yard travel time, performance of higher‑paid duties (driving/supervising) without higher pay, and delayed payment of a July 2013 DOL wage increase.
- Claims pleaded: FLSA minimum‑wage and overtime, Colorado Minimum Wage Act, breach of contract (failure to pay DOL‑certified prevailing wage), and quantum meruit (for duties outside certified job description).
- Plaintiff moved for Rule 23 class certification and FLSA collective notice; Court granted certification in part, limiting certified classes to foreign H‑2B workers and conditionally certified an FLSA collective for 2013–2015 H‑2B workers.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Rule 23 numerosity/commonality/typicality/adequacy for class of workers | Torres‑Vallejo: ~140 workers; common policies (visa fees, travel, uncompensated yard work, prevailing‑wage promises) produce classwide questions | CE disputes factual assertions (e.g., paid fees, reimbursement upon receipts, limited workers doing loading/driving) | Rule 23(a) satisfied: numerosity, commonality, typicality, and adequacy met for foreign H‑2B workers based on pled common policies and affidavits |
| Rule 23(b)(3) predominance and superiority (include both U.S. and foreign workers) | Common questions predominate; class action is superior given small individual recoveries and foreign workers’ limited access to U.S. courts | CE: individualized issues (proof of expenses, hours, contract formation) defeat predominance and manageability | Court: Common issues predominate for foreign H‑2B workers; but inclusion of U.S. workers defeats predominance and manageability — U.S. workers excluded from certified class |
| Statute of limitations for breach of contract (class period 2010–2015) | Torres‑Vallejo: breach claims are determinable (hourly wage × hours) so six‑year limitations may apply; thus class need not be shortened | CE: contract claims subject to three‑year limitations and earlier years should be excluded | Court: Core contract claims are for determinable amounts → six‑year rule applies; class not restricted on that basis. Quantum meruit remains three‑year and may limit recovery for earlier periods |
| FLSA collective certification (notice stage) | Plaintiff: lenient Thiessen standard met; substantial allegations of common policy justify notice and contact information disclosure | CE: factual disputes (payment practices) but these are merits issues not dispositive at notice stage | Court: Conditional certification granted; plaintiff may issue FLSA notice to H‑2B subclass (2013–2015); form/distribution to be set separately |
| Breach‑of‑contract legal validity (are DOL certifications contractual and privately enforceable?) | Torres‑Vallejo relies on authorities holding DOL labor certifications incorporate prevailing‑wage terms into workers’ contracts (allowing private contract claim) | CE argues DOL certifications do not create enforceable private contract rights; raises threshold legal defense | Court: Does not resolve on certification; finds claim non‑frivolous and that disputed legal issues do not defeat class certification at this stage; to be resolved later |
Key Cases Cited
- Wal‑Mart Stores, Inc. v. Dukes, 564 U.S. 338 (discusses commonality and classwide answers)
- Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (Rule 23(b)(3) predominance analysis)
- Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095 (10th Cir.) (two‑step FLSA collective‑action/notice standard)
- Cuellar‑Aguilar v. Deggeller Attractions, Inc., 812 F.3d 614 (8th Cir.) (DOL labor certification terms incorporated into H‑2B workers’ contracts)
- In re Urethane Antitrust Litig., 768 F.3d 1245 (10th Cir.) (individualized damages do not automatically defeat Rule 23(b)(3) predominance)