MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS’ MOTION FOR NOTICE TO POTENTIAL PLAINTIFFS AND CONDITIONAL CERTIFICATION And ORDER APPROVING IN PART AND STRIKING IN PART PROPOSED FORM OF NOTICE AND PROPOSED CONSENT FORM
THIS MATTER comes before this Court upon Plaintiffs’ Motion for Notice to Potential Plaintiffs and Conditional Certification, filed May 16, 2017 (Doc. 35). Having reviewed the parties’ briefs and applicable law, the' Court finds that Plaintiffs motion is well taken and, therefore, GRANTED, except for certain language proposed by Plaintiff in the proposed consent form.
BACKGROUND
Plaintiff is suing Defendants to recover unpaid overtime wages that Defendants failed to pay in accordance with the FLSA. Defendants are involved in oilfield casing services throughout New Mexico and Texas over the last three years and employ non-exempt employees to help perform casing services.
This motion seeks an Order allowing Notice to Potential Plaintiffs and Conditional Certification pursuant to the collective action provision in the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b): .
No employee shall be a party plaintiff to any [action to recover under the FLSA) unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.
29 U.S.C.A. § 216(b).
DISCUSSION
Plaintiffs seek conditional certification and supervised notice on the grounds that a group of other similarly situated nonexempt employees (“NEE”) exist and that Defendants subjected these individuals to illegal policies under the FLSA, denying overtime for all overtime hours worked and as well as overtime pay at the legally required rate.
Under 29 U.S.C. § 216(b), an employee may bring a collective action on behalf of “similarly situated” employees. 29 U.S.C. § 216(b). “The purpose of collective action under the FLSA is to give ‘plaintiffs the.advantage of lower individual costs to vindicate rights by the pooling of resources,’ and to benefit the .judicial system ‘by efficient resolution in one proceeding of common issues of law and fact arising from the, same alleged ..activity.’ ” Hoffmann-La, Roche Inc. v. Sperling,
Under an ad hoc approach, a court typically makes an initial “notice stage” determination of whether plaintiffs are “similarly situated.”
In the second step, which occurs after the parties have engaged in discovery and the opt-in process is completed, “the court’s inquiry is more stringent.” Mielke et al. v. Laidlaw Transit, Inc.,
II. Conditional Certification
This Court has previously addressed whether a class should be conditionally certified under the FLSA. See Maestas v. Day & Zimmeramn, LLC,
Following the completion of this discovery, the Court anticipates that Defendants may file a motion to decertify the class, in which case the Court will determine whether this case will proceed to trial on a collective basis, or whether FLSA claims will have to be individually pursued by the opt-in plaintiffs.
Doc. 161 at 8, Maestas v. Day et al.), Civ. No. 09-019.
The “similarity situated” requirement of § 216(b) is also more elastic and less stringent than the requirements found in Rule 23 class action standards. Thiessen v. Gen. Elec. Capital Corp.,
Thé “similarly situated” inquiry involves a case by case approach, which requires “nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Thiessen,
For purposes of the instant motion, the Court’s inquiry here is limited to the first step, or “notice stage” of the process which applies a lenient test to determine whether the putative plaintiffs are similarly situated — that is, Plaintiff must provide some evidence to establish a colorable basis showing the putative class members are victims of a single decision, policy or plan. The record need only be “sufficiently developed” to allow court-facilitated notice based upon “substantial allegations or some factual support.” See Williams v. Sprint/United Mgmt. Co.,
For an opt-in class to be created under section 216(b), an employee need only show that he is suing his employer for himself and on behalf of other employees similarly situated. Plaintiffs need show only that their positions are similar, not identical, to the positions held by the putative class members. Grayson v. K Mart Corp.,
• Defendants employ non-exempt workers (“NEEs”) to provide casing and other services to Defendants’ customers, but failed to track or count hours worked by casing employees (“CEs”) when these employees were paid on a quantity of work/ piece rate basis and as a result, Defendants underreported the overtime hours worked by CEs (hereinafter, “Uncounted Hours Policy”);4 and
• Defendants also pay CEs “additional pay” — in addition to hourly or quantity based pay for casing work, including but not limited to non-discretionary bonus, truck allowance and safety bonus pay (“Additional Pay”).5 Defendants categorically excluded ALL “Additional Pay” — other than hourly and quantity of work pay for casing work — from the regular rate to calculate CEs’ overtime compensation (“OT Miscalculation Policy”).
See Am. CompL, Doc. 29, at 2.
Defendants oppose conditional certification, but the arguments they raise are not compelling. Most of these arguments go either to the second stage of the analysis or to the merits of the case. For example, Defendants contend that Plaintiffs assertion that they were not compensated conflicts with Defendants’ practice that casing employees are required to report all hours worked and are paid for all hours worked. Defendants also argue that' conditional certification is not appropriate because Plaintiffs fail to offer evidence other than' conclusory allegations, that their alleged experience of not being paid for off-the-clock activities was shared by other employees. However, these issues go more to the merits of this case rather than to conditional certification, which at this initial stage requires no actual evidence to be presented, but only “substantial allegations” that the putative class members were together “victims of a single -decision, policy or plan.” Thiessen,
' Defendants further contend that the putative plaintiffs have no knowledge ■ about Defendants’ pay practices regarding fellow casing employees during the bulk of the limitations period because they have not worked for Defendants for over two years. This issue would be taken up in the second stage of the analysis which uses a stricter standard to determine whether plaintiffs are “similarly situated” and would include a review of the disparate factual and employment settings of the individual plaintiffs. Defendant’s final argument is that conditional certification should be denied because evidentiary hearings for each “collective member” are necessary to determine damages as to each plaintiff. However, to support this argument, Defendants rely on a case addressing Rule 23 class actions.
The “similarly situated” inquiry under the Court’s immediate consideration requires only a colorable basis showing the putative class members are victims of a single decision, policy or plan, and Plaintiff has satisfied this lenient test. The putative plaintiffs worked for the same employer, performed largely similar duties and their allegations of FLSA violations are derived from the same alleged practices of either not paying for overtime hours worked or miscalculating those hours. The allegations in the Amended Complaint, together with Plaintiffs proffered exhibits are therefore sufficient as a basis for the Court to grant conditional certification.
III. Notice
In addition to Conditional. Certification of the potential or putative plaintiffs, Plaintiff also seeks approval of supervised Notice to these individuals. To that end, Plaintiff asks that the Court approve the proposed form of Notice which is attached as Exhibit A to the motion. Doc. 35-1. Defendants appear to have two problems with the proposed Notice submitted by Plaintiff for the Court’s approval. First, Defendants object to the form of Notice because it, fails to provide important .information regarding Defendants’ denial of the allegations and information regarding putative class members’ obligations. Defendants’ second objection is the Plaintiffs proposed method of notice to potential plaintiffs, which includes email and text as well as by United States Postal Service. Defendants request that instead of having parties brief all these deficiencies, the Court should require the parties to confer on the notice issue and if discussion does not resolve the parties’ differences, briefing can be ordered.
A. Court’s General Approval of Supervised Notice and Method of Notice
It is pointless to order the parties to confer in an attempt to resolve their differences on the notice issue. This Court’s local rules already require that parties make a good-faith request for concurrence prior to filing a motion, which was apparently done here. See Doc. 35 at 12; D,N.M.LR-7.1(a). At that point, Defendants would have been aware of what their particular objections were to the form and method of the proposed Notice, and the parties could have attempted to resolve at least their differences regarding the proposed Notice issue. Defendants’ suggestion that the parties engage in further discussion on the notice .issue is late in coming!
The Court notes that Defendants made a conscious decision not to brief all of the perceived “deficiencies” in Plaintiffs proposed Notice in responding to this motion, ostensibly for the reason that it was “unlikely” that the Court would grant Plaintiffs motion. See Doc, 37 at 2 (“Rather than brief all these deficiencies,' Defendants propose[s] that the parties confer regarding notice in the unlikely event that the Court grants .Plaintiffs’ request in the Motion, and then brief notice as warranted should the conference prove unsuccessful”). Defendants’ decision riot to brief the Notice issue was unfortunate, since the lenient standard followed in this circuit for conditional certification of PLSA collective actions would make it more likely that the Court would grant Plaintiffs motion.
Further discussion regarding whether notice by email and text should be allowed would also be pointless because the law is on Plaintiffs side. Courts have recognized that notice by email and text is reasonable in today’s mobile society and that these methods of communication may offer a more reliable means of reaching an individual even if that individual is away from home or has moved. See, e.g., Landry et al. v. Swire Oilfield Serv., LLC et al.,
B. Court’s Ruling on Specific Notice Issues
While the Court generally approves of supervised notice as well as Plaintiffs requested methods of notice, the Court finds it necessary to specifically address the proposed notice forms.
1. Form of Notice
Plaintiff has attached the form of Notice as an exhibit to the motion (Doc. 35-1), The form was also attached to the-reply with additional language regarding Defendants’ denial of the allegations. See Doc. 39-1 (redlined version adding language that “Bull Rogers denies these allegations and contends it properly paid its employees overtime for all hours worked at the legally required. rate”) and Doc. 39-2 (modified version without redline). The Court approves of this modification and finds that it sufficiently addresses Defendant’s- objection in that regard. This modified form of Notice comports with notices ' used; in other FLSA collective actions and approved by this district. See Landry v. Swire Oilfield Services, L.L.C., No. 16-621-JB-LF, Doc. 35-1 at l(Jan. 13, 2017) (stating that “Defendants disagree with
2. Consent Form
Plaintiff has also attached a proposed Notice of Consent which consists of two pages. The first page is the consent itself with a signature line for the plaintiff opting in, and the second page requests contact information to be filled in by the plaintiff. The Court approves of this form with one exception. The consent form itself contains the following language in part:
I further acknowledge that I intend for this consent to be filed in order to recover my overtime wages against my cur-reni/former employer whether in this action or in, any subsequent action that may be filed on my behalf for such recovery, and this consent may be used in this case or in any subsequent case as necessary.
Doc. 35-2 at 1 (emphasis added). The Court finds that the emboldened language is unnecessary and may be misleading to an individual whose intention is to opt-in to the present litigation. The Court finds that there is no legal basis to bind the individual to the form’s use in “any subsequent case as' necessary.” The Court therefore STRIKES the emboldened language in the above-cited paragraph and approves of the consent form with the following substituted language:
I further acknowledge that I intend for this consent to be filed in order to recover overtime wages against my current/former employer that may be owed to me and that this consent may be used in this case as necessary on my behalf for such recovery.
In making this finding, the Court uses as reference the consent form used with this Court’s approval in the Maestas case, 09cv00019-WJ-SMV, Doc. 173-1, filed July 22, 2014. That form contains no language referring to subsequent litigation, and represents the individual’s consent only for the case in which it was being filed.
CONCLUSION
In sum, this Court finds and concludes that Plaintiff has satisfied the requirements for conditional certification at this “notice stage” based on the allegations in the Amended Complaint and the exhibits submitted by Plaintiff.
’ The Court also approves of the issuance of notice to putative plaintiffs and of the use of email and text as a method of notice. However, while the Court generally approves of the proposed Notice form and the proposed consent form, the Court also STRIKES some of the language in the proposed consent form, as described above.
THEREFORE,
IT IS ORDERED that Plaintiffs’ Motion for Notice to Potential Plaintiffs, and Conditional Certification (Doc, 35) is hereby GRANTED in that this Court conditionally certifies this collective action brought, under the FLSA;
IT IS FURTHER ORDERED that this Court approves of supervised notice and the requested notice methods, but strikes certain language in the proposed consent form, as described above. Plaintiffs’ counsel shall ensure that the Notice be modified to contain the exact wording approved by the Court.
Notes
. According to the online Schlumberger Oilfield Glossary, casing services deal with the lowering of large-diameter pipes into a well that are sufficient to withstand a variety of forces.
. The pleadings also refer to "casing employees” as "casing workers” or “casers.” See Doc. 35, Exs. C & D (using term "CWs"); and Doc. 37 ’at 3 (reference to “casers’).
. In the Maestas case, United States Magistrate Judge Lorenzo Garcia conducted an extensive review of the case law on the issue of which approach to, use in determining the ‘‘similarly situated" question. See Maestas, Civ. No. 09-019, Doc. 32 at 3.-5, Other approaches which have been- used by some federal-district courts are based on Rule 23 elements, notwithstanding the significant distinction between class actions brought under Rule 23 opt-out actions and the collective opt-in actions brought under the FLSA.
. Exs. E and F to the motion are presented to the Court to illustrate Defendants’ total disregard to track the time worked by Plaintiff when he was paid on a quantity of work basis. These pay stubs show both payment received for working "0” hours, as well as insufficient payment for overtime even based on a minimum wage calculation.
. "Additional Pay” specifically excludes hourly pay and quantity-based pay for casing work, but includes all other pay received by NEEs including non-discretionary bonus and per diem pay. See Doc. 35 at 4, n.5; see also Doc. 29 (Am.Compl.), ¶ 5 (describing "Additional Pay" as included but not limited to "per diem and non-discretionary bonus pay”).
. The ADEA incorporates the procedures for enforcement of the FLSA, and a class action under the ADEA is therefore governed by 29 U.S.C. § 216(b) rather than Rule 23 of’the Federal Rules of Civil Procedure. Williams,
. Defendants rely on Comcast Corp. v. Behrend,
. See, e.g., Bass v. PJComn Acquisition Corp.,
. In Williams v. Sprint, the federal district court in Kansas "was also skeptical of defendant’s failure to brief the notice issues. 222 F.R.D, at 487. The court was “somewhat puzzled by Sprint’s failure to include in its rer sponse to plaintiff’s motion any objections it might have to plaintiff’s proposed notice— .particularly as plaintiff expressly moves the court to approve the specific notice, .that she has attached to her motion,”
. The Court notes that there is a pending Motion to Compel (Doc. 32) filed by Plaintiff. If Defendants have indeed been stalling in providing responses to Plaintiff’s discovery requests, this Court’s conditional certification should provide an impetus in moving along this litigation.