MEMORANDUM OPINION AND ORDER
Plaintiffs Diane Behnken, Walter R. Brown, Joe Collette, Bill Doss, Jr., Daniel Griffin, and Willard Simpson, on behalf of themselves and all others similarly situated, bring this putative collective action under 29 U.S.C. § 216(b), a provision of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., to recover unpaid overtime pay from defendant Luminant Mining Co., LLC (“Luminant”). Plaintiffs move for conditional certification and court-facilitated notice to potential class members, and limited discovery. For the reasons that follow, the court grants the motion for conditional certification and court-facilitated notice (subject to sustaining certain of Luminant’s objections to the proposed notice), and grants in part and
I
Plaintiffs allege that they are non-exempt hourly employees of Luminant who work at the Three Oaks Mine near Rock-dale, Texas.
According to plaintiffs, Luminant requires all Spec I, Spec II, Spec III, and MES employees — except for mechanics and electricians — to work during their assigned meal break times. Plaintiffs allege that they were paid for 12 hours of time but were effectively required to work a 12.5-hour shift because Luminant did not provide a bona fide meal break.
II
Section 216(b) of the FLSA authorizes a plaintiff to bring a collective action on behalf of similarly-situated persons, provided that any person who desires to become a part of the collective action files a written consent in the court. 29 U.S.C. § 216(b). When a plaintiff seeks to bring a collective action, a district court can in its discretion facilitate notice to potential plaintiffs of their right to opt-in to the suit. See Hoffmann-La Roche, Inc. v. Sperling,
Under this test, the court first determines whether plaintiffs have provided sufficient evidence of similarly-situated potential plaintiffs to warrant court-facilitated notice. Aguilar,
The court is generally more “lenient” with regard to substantial similarity during the “notice” stage of the analysis, id., but “notice is by no means mandatory.” Harris v. Fee Transp. Servs., Inc.,
But before granting court-facilitated notice, the court should satisfy itself that there are other similarly-situated employees of Luminant who would desire to opt-in to the lawsuit. See Dybach v. State of Fla. Dep’t of Corrections,
Ill
The court first considers whether plaintiffs have produced sufficient evidence that there are similarly-situated plaintiffs. Lu-minant contends that plaintiffs cannot make this showing for three reasons: first, they cannot prove that they or the putative class were subject to a single policy, practice, or decision that violated the FLSA; second, their claims will require individualized assessments that would render the matter unsuitable for a collective action; and third, plaintiffs áre not similarly situated because they are classified differently and have different job descriptions.
A
1
Luminant contends, first, that it had a lawful policy in place during the relevant period. It argues that the policy required its employees to report when they worked through lunch so that they could be paid for overtime, and that any failure to pay overtime during the relevant period was the fault of the employees for not reporting their time correctly. Plaintiffs respond that there is no evidence to support the existence of this reporting requirement, that employees in the putative class did not know they were entitled to a bona fide meal break, and that management did not tell employees in the putative class to report working lunches on their time sheets.
In support of its position, Luminant cites the 12-Hour Shift Agreement (“Shift Agreement”) and the collective bargaining agreement (“CBA”) between Luminant and IBEW Local 2078, which represents some of the employees in the putative class. According to Luminant, the lunchtime policy is established by the Shift Agreement, which incorporates the meals provisions of the CBA. The Shift Agreement provides, in pertinent part, that the workday will be as follows:
Regular workday will consist of two 12-hour shifts. Day shift starts at 7:00 a.m. and ends at either 7:00 p.m. or 7:30 p.m. Night shift starts at 7:00 p.m. and ends at either 7:00 a.m. or 7:30 a.m. Shifts will be determined depending whether the employee is assigned to observe a 30-minute unpaid lunch period or eats on the run based on the business needs as determined by supervision.
D. App. 23. A different provision of the Shift Agreement states: “Meals: Reference current Labor Agreement.” Id. at 25 (underlining omitted). The CBA includes the following provision:
Section 5 Meals: When an employee is assigned to work unexpected overtime connected to his/her regularly schedquled shift and the employee notifies his/her supervisor of the need for an appropriate meal, a good faith effort will be made to accommodate the employee needs. The supervisor retains the discretion to approve a meal based on the job assignment, working conditions and expected employee release time.
Id. at 21 (bold font omitted).
In addition to these written documents, Luminant cites other evidence to support its position. It cites the declaration of Curtis Lightle (“Lightle”), the Director of the Three Oaks Mine, in which he avers that “[t]he Company communicates to employees that they must fill out timesheets each week.... Management informed employees of this policy, and employees understood and utilized this policy when they worked through a lunch break.” D. App. 3. It also cites the declaration of Jonathan Lewis (“Lewis”), the Human Resources Manager at the Three Oaks Mine, in which he avers:
When Luminant implemented the 12.5-Hour Shift Period, I met with employees to explain how to complete their time sheets and that they had an option of making notations to their supervisors and payroll regarding any discrepancy in their work hours on the notes section of the time sheet.... If employees had an issue, they could talk to their supervisor or to any of us in HR or payroll.... Based on my role and observations during the 12.5-Hour Shift Period, I am confident that employees understood the pay policy and how to get paid when they worked through their lunch breaks.
D. App. 15. And it cites time sheets, some of which were allegedly filled out by named plaintiffs in this case, that include a notation indicating that the employee worked through lunch. See, e.g., D. App. 28. Luminant argues that this evidence conclusively establishes that plaintiffs understood and used Luminant’s lawful policy regarding working lunches, and, as a result, they are unable to identify any policy, practice, or decision that serves as the basis for the alleged FLSA violations.
Plaintiffs respond that neither the Shift Agreement nor the CBA imposes a reporting requirement on the employees. They also argue that the declarations from Ligh-tle and Lewis are vague and conclusory and do not negate plaintiffs’ eight declarations to the contrary. Finally, plaintiffs maintain that the fact that some employees, including several named plaintiffs, noted on various time sheets that they worked through lunch does not prove that the employees knew they were entitled to a bona fide meal break or that management communicated to them that they were required to fill out their time sheets in a certain way to receive overtime compensation.
2
The question presented is whether plaintiffs have provided substantial allegations that potential class members were subject to a single decision, policy, or plan that violated the FLSA. The court holds that they have.
Luminant argues, second, that plaintiffs’ claims will require individualized assessments that render the matter unsuitable for collective action. It contends that plaintiffs’ theory requires a number of individualized inquiries because each plaintiff will have to testify about whether she worked through lunch, understood the alleged reporting requirement discussed above, and made notations for working-through lunch on her time sheet. Plaintiffs respond that none of these alleged individualized assessments affects the decision to conditionally certify a class because they do not change the underlying dispute concerning whether members of the putative class were provided bona fide meal breaks and whether they were responsible for reporting working lunches on their time sheets. Plaintiffs also maintain that, even if some named plaintiffs were paid for some of their working lunches, minor differences in the amounts payable to various class members are an insufficient reason to deny conditional certification.
The court concludes that the alleged need for individualized assessments is not a sufficient reason to deny conditional certification under the facts and circumstances of this case. Luminant relies primarily on two cases, both of which are distinguishable.
In Dudley, although the court noted that “[a]ny analysis of lunch breaks will result in this court and any jury hearing individual testimony regarding whether [plaintiffs] regularly took lunch breaks, or only occasionally,” that was not the sole, or even primary, basis for the court’s conclusion. Dudley,
Plaintiff presents no evidence refuting Defendant’s written policy that employees were admonished to take their lunch breaks. Further, Plaintiff presents no evidence refuting the General Manager’s testimony that drivers are informed that if they work through their lunch period, they are to advise management of that fact so they can be compensated for that working time.
Given that the evidence presented by Plaintiff fails to sufficiently demonstrate the existence of a “similarly situated” class of employees and Plaintiffs complaint and affidavits in support thereof contain unsupported assertions of improper lunch break adjustments, the Court declines to certify a collective action on the issue of improper lunch break adjustments.
Id. In the present case, plaintiffs have produced more than unsupported assertions, and Luminant has failed to produce evidence of a written policy that conclusively establishes the legality of its practice. Although at some point there may be some need for individualized testimony, this possibility does not negate the showing that plaintiffs have made at this stage. Saleen v. Waste Management, Inc.,
Although the need for individual testimony may become apparent at a later stage of this lawsuit; it does not negate that plaintiffs have presented a “factual nexus” that binds the named plaintiffs and the potential class members. See, e.g., Proctor v. Allsups Convenience Stores, Inc.,
C
Luminant maintains, third, that plaintiffs are not similarly situated because they are classified in different ways and have different job responsibilities. It points out that the putative class includes members with disparate classifications (e.g., Spec I, Spec II, Spec III, and MES) and different job duties (e.g., dragline operator, loader operator, bulldozer operator, and hauler operator). Plaintiffs acknowledge that members of the putative class are classified differently and have varying job descriptions, but they argue that these differences are not materially different with respect to their claim. According to plaintiffs, members of the putative class are similarly situated despite these differences because they are all nonmanagement mining employees of Luminant, each has been paid on an hourly basis, each is classified as non-exempt by Luminant, each was employed at the Three Oaks Mine,
The court concludes that the different job classifications and responsibilities of members of the putative class are not materially relevant differences under the first stage of the two-step certification process. Luminant relies on several cases in which courts denied motions for conditional certification because the differences in job duties were materially relevant to the plaintiffs’ allegations. See, e.g., Bodle v. TXL Mortg. Corp.,
IV
The court next considers whether plaintiffs have produced sufficient evidence that the similarly-situated plaintiffs would desire to opt-in. “[B]efore granting court-facilitated notice, the court should satisfy itself that there are other similarly situated employees ... who would desire to opt-in to this lawsuit.” Valcho,
Plaintiffs allege that more than 50 employees
Luminant does not cite any authority for the proposition that a non-court-approved form of notice renders court-approved notice a threat to judicial neutrality. In the two cases that Luminant cites, the court denied plaintiffs’ requests to send reminder postcards after the initial court-approved notice was given. See, e.g., In re Wells Fargo Wage & Hour Empl. Practices Litig. (No. III),
Because plaintiffs have adduced evidence that more than 50 employees of the putative class- have already expressed a desire to opt-in and that more employees may wish to do so, the court concludes that similarly-situated employees may desire to opt-in to this suit.
V
The court therefore holds that plaintiffs have made substantial allegations of the existence of similarly-situated employees of the putative class who would desire to opt-in and have therefore met the requirements for conditional certification of the class. The court conditionally certifies a class consisting of “[a]ll current and former non-management mining employees other than electricians and mechanics at the Three Oaks mining facility near Rock-dale, Texas operated by [Luminant] who were employed between March 1, 2012 and March 15, 2013.”
VI
The court now considers plaintiffs’ proposed form of notice and consent to join form.
A
The benefits of a collective action “depend on employees receiving accurate and timely notice concerning the pendency of the collective action, so that they can make informed decisions about whether to participate.” Hoffmann-La Roche Inc.,
Luminant objects to plaintiffs’ proposed notice form on the following grounds: (1) it does not mention that, if plaintiffs eventually receive an unfavorable judgment, opt-in plaintiffs may be required to bear the costs of the litigation; (2) it does not advise that potential opt-in plaintiffs may be required to give a deposition, respond
B
1
Luminant first objects to the proposed notice on the basis that it does not mention that, if plaintiffs eventually receive an unfavorable judgment, opt-in plaintiffs may be required to bear the costs of the litigation. Plaintiffs respond that adding such language would unnecessarily deter potential opt-in plaintiffs from joining the lawsuit because the proposed language would not make clear that the costs would be dispersed among a large class and that attorney’s fees would only be assessed against plaintiffs in the rare event that the case was determined to be frivolous.
The relevant statement in the proposed notice form states, “Plaintiffs’ attorneys are working on a contingency fee basis, which means that if there is no recovery, they receive no attorney’s fee[s].” Ps. App. 37 (bracketed material added). This language does not apprise potential opt-in plaintiffs that they may be required to pay taxable court costs if the judgment is unfavorable to them. Thus the proposed notice form is not completely accurate as to the potential liabilities for those who join the lawsuit, it omits information that would be necessary for someone to make an informed decision about whether to join the lawsuit, and the affirmative representation that plaintiffs’ attorneys are working on a contingency fee basis and that no recovery means no attorney’s fees could lead a potential opt-in plaintiff to believe that there would be no risk of incurring personal costs of any kind if the litigation were unsuccessful. Accordingly, the court sustains Luminant’s first objection to the extent that it directs that the proposed notice form be changed to read as follows: “Plaintiffs’ attorneys are working on a contingency fee basis, which means that if there is no recovery, they receive no attorney’s fees. You may, however, be required to pay your proportional share of taxable court costs if the plaintiffs receive an unfavorable decision.” This modification addresses the inaccuracy in the proposed notice while simultaneously addressing plaintiffs’ concern that individuals considering whether to opt-in might not be aware that such costs would be dispersed among members of the entire class.
2
Luminant’s second objection is that the proposed notice form does not advise that potential opt-in plaintiffs may be required to give a deposition, respond to written discovery, or testify in court. In response, plaintiffs agree to a partial modification so that the notice form would state that individuals joining the lawsuit “may be required to be deposed or testify in court.” Ps. Reply 10. They do not address Lumi-nant’s argument that the notice should also include language regarding the possibility that opt-in plaintiffs may be required to respond to written discovery.
Because plaintiffs do not give any reason why such language would be inappropriate, and courts routinely approve of such language, the court sustains Luminant’s second objection. See, e.g., Whitehorn,
3
Luminant’s third objection is that the proposed notice form does not advise that potential opt-in plaintiffs may not recover for lunches for which they were already paid. Plaintiffs oppose this objection on the ground that adding such language is unnecessary because the proposed notice form already makes clear that the lawsuit is for “unpaid” time.
The court agrees with plaintiffs that the proposed notice form clearly indicates that plaintiffs are seeking recovery of “unpaid overtime compensation.” E.g., Ps. App. 35. After considering the entire form, the court concludes that the proposed notice does not convey an inaccurate impression that potential opt-in plaintiffs will be able to recover for time already paid. Accordingly, the court overrules Luminant’s third objection.
4
Luminant’s fourth objection is that the proposed notice form requires opt-in plaintiffs to mail the consent form to plaintiffs’ counsel, not to the court. The court overrules this objection.
The only argument Luminant makes in support of this objection is that it will not be able to “timely determine opt-in status” if the consent forms are mailed to plaintiffs’ counsel rather than to the court. D. Resp. 29. Luminant does not identify any reason why the consent forms cannot or would not be readily provided to it by plaintiffs’ counsel. The court directs plaintiffs’ counsel to notify Luminant’s counsel when notices are mailed to potential opt-in plaintiffs and to provide copies of consent forms to Luminant’s counsel when they are received from persons opting into the lawsuit.
5
Luminant’s fifth objection is that it does not list the identity of, or contact information for, Luminant’s counsel. Plaintiffs oppose this objection, contending that it would be inappropriate to identify and include contact information for Luminant’s counsel as part of the notice.
Luminant does not identify any authority supporting its position, and the court is aware of none. See, e.g., Gambo v. Lucent Techs., Inc.,
VII
Plaintiffs request limited discovery to ensure timely notice. They ask that the court order Luminant to produce either a Microsoft Word or Microsoft Excel data file containing the names, last known addresses, and telephone numbers of current and former nonmanagement mining em
As plaintiffs note, discovery of this sort of information is a routine component of court-facilitated notice in FLSA collective actions. See, e.g., Hoffmann-La Roche,
For the reasons explained, plaintiffs’ October 15, 2013 motion for conditional certification and to facilitate § 216(b) notice is granted, Luminant’s objections to the proposed notice and consent form are sustained in part and overruled in part, and limited discovery is granted in part and denied in part.
SO ORDERED.
Notes
. Luminant states that the Three Oaks Mine is located in Elgin, Texas. Because plaintiffs’ proposed class definition uses the designation "near Rockdale, Texas,” the court will use this description as well.
. Employers are not required to compensate employees for bona fide meal times. See 29 C.F.R. § 785.19 (2013). To qualify as a bona fide meal time, the employee must be completely relieved from duty. See id. Plaintiffs allege that they were required to stay on their equipment in the mining area, to maintain radio contact with other coworkers and supervisors at all times, and to monitor the mine pit walls during meal breaks.
. A court’s refusal to facilitate notice does not of itself prevent a plaintiff from using independent efforts to identify potential plaintiffs of the lawsuit. See Hoffmann-La Roche,
. The court is assuming arguendo that plaintiffs must provide a substantial allegation that the potential class members were subject to a common decision, policy, or plan. The court notes that other courts have suggested that an allegation of a common decision, policy, or plan may not be required under § 216(b). See, e.g., Grayson v. K Mart Corp.,
. For example, Lightle avers in his declaration:
From March 5, 2012 to March 7, 2013, Three Oaks changed to 12.5-hour shifts rather than 12 hour shifts.... By switching to the 12.5 hour shift, management intended that employees would take a half hour non-working, un-paid lunch midway through their shifts.... During the 12.5-Hour Shift Period, if an employee had to work through his or her lunch period, ... the employee would alert his or her supervisor of that fact so that he/she would be paid for that half hour.... Management informed employees of this policy, and employees understood and utilized this policy when they worked through a lunch break.
D. App. 2-3 (emphasis added).
. Numerous courts have emphasized that the factual support necessary at this stage is modest, and that the standard to be applied by the district court is quite lenient. See, e.g., Moore v. Eagle Sanitation, Inc.,
. Plaintiffs rely on the magistrate judge’s report and recommendation. See Saleen v. Waste Mgmt., Inc.,
. Luminant also cites Johnson v. Big Lots Stores, Inc.,
. As plaintiffs point out, if it turns out that some members of the putative class were paid overtime for some of the days in question, it would be relatively straightforward to compute the necessary offset amounts.
. Plaintiffs’ proposed class definition expressly excludes electricians and mechanics.
. In their motion, plaintiffs state that 58 employees have opted-in, but in their reply brief, they state that 52 individuals have already filed opt-in forms with the court. Compare Ps. Mot. 11, with Ps. Reply 5. The court notes that more than 50 employees is a sufficient basis to infer that similarly-situated employees would desire to opt-in, regardless whether the actual number is 58 or 52.
. In their reply, plaintiffs request that plaintiffs' counsel’s firm name and contact information be updated with the forms. The court grants this request.