O'Donnell v. Robert Half International, Inc.O'Donnell v. Robert Half International, Inc.
MEMORANDUM & ORDER
Thе plaintiffs, Ian O’Donnell (“O’Donnell”) and David Jolicoeur (“Jolicoeur”), seek a conditional certification of a class in a class action against Robert Half International, Inc. and Robert Half Corporation (collectively “RHI”) under 29 U.S.C. § 216. That statute permits employee-plaintiffs to represent similarly situated employees in an action for violation of the Fair Labor Standards Act (“the FLSA”). 1
I. Background
RHI is a “staffing firm” based in Menlo Park, California, which has offices throughout the country. Plaintiffs are former “Staffing Managers” of RHI in the “Aecountemps” division of the Boston, Massachusetts office. They allege that RHI has deprived them of overtime pay to which they are еntitled by improperly characterizing them as exempt employees under the FLSA. Plaintiffs claim is, essentially, that they were tightly-controlled telephone operators who had no discretion or managerial authority and, therefore, should have been treated as employees eligible for overtime.
On December 1, 2004, plaintiffs filed a complaint in state court alleging two counts: 1) violation of M.G.L. c. 151 § 1A,1B (mandating payment of overtime wage to certain kinds of employees) and 2) violation of the FLSA, 29 U.S.C. §§ 201-219 (same). On December 29, 2004, RHI removed the case to this Court on federal question grounds.
III. Motion to Certify
On May 11, 2005, plaintiffs moved to “conditionally” certify a proposed class and for a Court Order of notice to putative class members. The putative class includes:
all current and former Staffing Managers, Account Executives or Account Managers employed in any state other than California within the last three (3) years immediately preceding the filing of the Complaint.
Plaintiffs offer affidаvits of the two named plaintiffs detailing their daily duties and stating that they are aware of other employees who are interested in joining the suit.
RHI opposes the motion and argues that 1) the employees in the putative class are
The FLSA requires that employees be compensated for hours worked in excess of 40 hours per week at a minimum rate of one and one-half times their regular rate of pay. 29 U.S.C. § 207(a)(1). Employees are, however, exempt if they are “employed in a bona fide executive, administrative, or professional capacity”. 29 U.S.C. § 213(а)(1). This action concerns whether the plaintiffs were properly exempted.
Pursuant to § 216(b), an action for violation of the FLSA may be maintained “against any employer ... by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” That provision has been construed to establish an “opt-in” class action scheme whereby potential plaintiff-employees may affirmatively notify the court of their intention to become a party in order to be bound by the action.
Kane v. Gage Merch. Servs., Inc.,
A clаss may be conditionally certified and notified of the pendency of an action only if the putative class members are “similarly situated” with the named plaintiffs. See id. The First Circuit Court of Appeals has not addressed how that inquiry is to be accomplished but, in 2001, this session did so in the Kane case. 2
In Kane, this Court endorsed a “two-tiered” approach to determining whether named plaintiffs and putative class members are similarly situated:
1) the “notice stage”, in which the Court relies upon the pleadings and any affidavits to determine, under a “fairly lenient standard”, whether the putative class members “were subject to a single, decision, policy, or plan that violated the law”; and
2) the second stage, wherein, after discovery, a defendant may move for de-certification if the plaintiffs are shown not to be similarly situated.
Id. In this case, we are in the first stage.
Plaintiffs move for conditional certification of a class of:
all current and former Staffing Managers, Account Executives or Account Managers employed in any state other than California within the last three (3) years immediately preceding the filing of the Complaint.
They also seek an order compelling RHI to provide names, mailing and e-mail addresses, telephone numbers and dates of employment of all such individuals and permitting notice to be sent to them by the plaintiffs.
As a preliminary matter, plaintiffs have providеd conflicting descriptions of the group they seek to notify of the pendency of this case. In their First Amended Complaint, they assert their claims on behalf of all staffing professionals “employed by Defendants in any of their divisions in any state except Massachusetts and California, within three (3) years of the filing of this
Notwithstanding that conflict, it is clear that plaintiffs have overreached in their motion for conditional certification. Employees may proceed as a class only tо the extent they “were subject to a single, decision, policy, or plan that violated the law”.
Kane,
Plaintiffs describe their employment as “Staffing Managers, Account Executives, and Account Managers ... ”, thereby purporting to speak generally for all such employees, but offer no justification for doing so. The only evidence offered are the affidavits of the individual plaintiffs, neither of whom has personal knowledge of the practices of RHI management in other divisions or offices. It is thus far from clear that the plaintiffs are similarly situated with: 1) Account Executives and Account Managers, 2) employees outside the Accountemps Division or 3) employees in other parts of the country.
Under the FLSA, the question of whether an emрloyee is properly exempted involves a fact-intensive inquiry into his/ her job responsibilities and autonomy, the management style of the employee’s supervisor and whether that employee worked over 40 hours per week. One cannot merely assume, as the plaintiffs have here, that RHI employees throughout thе country and corporate structure were subject to the same “policy” of an allegedly improper exemption. Plaintiffs need to show more.
In Kane, for instance, a conditional certification was allowed because 1) plaintiff sought to certify a “discrete” class of only 50-100 people, 2) all of whom had wоrked on a single construction job under a single supervisor and 3) had been subjected to the same explicit policy under one particular construction contract. Id. at 215. In support of his motion, Mr. Kane submitted a list of 51 specific employees who he contended had been underpaid. Id. In stark contrast, the class here would number in the thousands, would include unidentified individuals in different departments and locations and would involve those working under different management.
Moreover, the plaintiffs have failed to demonstrate that any of the putative class members are interested in joining the suit. Courts have considered such interest to be a requirement to justify conditional certification of a class.
See, e.g., Pfohl v. Farmers Ins. Group,
At the scheduling conference on August 19, 2005, plaintiffs attempted to address the described difficulties and sought leave of the Court to file a reply brief to RHI’s opposition to their motion for conditional certification, which the Court allowed. Plaintiffs’ responses at the conference and in their subsequent memorandum havе failed to convince the Court that the employees in the putative class are “similarly situated” with the named plaintiffs or that putative class members are interested in joining the suit. The Court need not consider RHI’s other arguments in opposition. Plaintiffs’ motion for conditional certification and to facilitate § 216(b) notice will be denied.
IV. Motion to Amend
While this Court was considering plaintiffs’ motion for conditional certification of the class and to facilitate § 216(b) notice, plaintiffs moved to amend their complaint on November 30, 2005. That amendment would add a new lead plaintiff and allege new facts in support of an alternative theory of RHI’s liability for failure to pay overtime pay as required under the FLSA. The pending complaint alleges that RHI misclassified the plaintiffs as exempt employees because they failed to meet the “duties” test. The proposed amended complaint alleges that RHI classified plaintiffs and all others similarly situated as exempt from the overtimе requirements of the FLSA despite RHI’s violation of the “salary basis” test. The new complaint contends that a broader class of employees has been affected by the defendants’ violation of the FLSA and the new class would include all employees that RHI has designated as exempt within the statutory period.
According to Fed.R.Civ.P. 15(a), leave to amend will be “freely given” when justice so requires unless the amendment “would be futile or reward,
inter alia,
undue or intended delay”.
Resolution Trust Corp. v. Gold,
Under that standard, there is no reason to deny the plaintiffs the opportunity to amend their complaint. This litigation remains in the early stages and is not nearly ready for trial. Thus, amendment of the complaint by the plaintiffs will not prejudice the defendants.
See Executive Leasing Corp. v. Banco Popular de P.R.,
There is no evidence that plaintiffs filed the motion to amend in bаd faith. RHI offers supposition and speculation regarding plaintiffs’ motives, specifically arguing that they took an interest in amending their complaint only after this Court expressed skepticism at the scheduling conference on August 19, 2005, with respect to plaintiffs’ first theory of FLSA liability. Nevertheless, in the absence of proof, RHI’s arguments are unpersuasive.
Furthermore, plaintiffs’ amendments will likely promote judicial efficiency because all current and former employees of RHI who have legitimate claims against it under the FLSA will now be able to resolve those claims in this action. At this stage of the litigation, plaintiffs’ proposed amendments do not apрear to be futile and their claims will be heard on their merits.
V. Motion to Compel
On November 30, 2005, RHI moved the Court to compel the plaintiffs to produce certain documents. Specifically, RHI had served requests for production of documents, pursuant to Fed.R.Civ.P. 34, on June 2, 2005. Plaintiffs failed to respond within the requisite 30-day time period and RHI raised the issue at thе scheduling conference on August 19, 2005. This Court ordered the plaintiffs to respond to the requests “forthwith” but limited its order to documents pertaining to the issues raised by plaintiffs’ then-pending motion to facilitate § 216(b) notice.
RHI asserts that the plaintiffs flouted that order for more than three months and that this Court should compel them to produce the requested documents and sanction them for being in contempt. Plaintiffs respond that RHI failed to send a revised document request after the scheduling conference of August 19, 2005, to limit the scope of the request as directed by the Court. After RHI’s motion to compel on November 30, plaintiffs allegedly attempted to producе documents to respond to RHI’s original requests but noted their objection to requests that they deemed beyond the scope of permitted discovery. Following the production of those documents, plaintiffs sought to have RHI withdraw its motion to compel and contends that they have produced all documents that are rеlevant and non-privileged that they were required to produce by the Court order.
The Court finds that plaintiffs were dilatory with respect to RHI’s first request for production in June, 2005. They neither served objections nor sought a protective order but rather sat on their hands. This Court made its position very clear at the scheduling conference in August and ordered the plaintiffs to respond “forthwith”. In an attempt to ease the plaintiffs’ burden, it limited the scope of the required production and the matter should have been resolved then and there. It was not and the plaintiffs will therefore pay for their intransigence.
ORDER
In accordance with the foregoing:
1) Plaintiffs’ First Motion to Facilitate § 216(b) Notice (Docket No. 11) is DENIED;
2) Plaintiffs’ Motion to Amend Complaint (Docket No. 34) is ALLOWED;
3) Defendants’ Motion to Compel Production of Documents and for Sanctions (Docket No. 31) is ALLOWED, to the extent that Plaintiffs shall pay to the defendants forthwith, Two Thousand Dollars ($2,000) for having to pursue this matter in court, but is, in all other respects, DENIED AS MOOT; and
4) Defendants’ Motion to Stay Plaintiffs’ Renewed Motion to Facilitate § 216(b) Notice (Docket No. 41) is ALLOWED, insofar as Defendants will have thirty (30) days from the date of this Order to file their opposition to Plaintiffs’ Renewed Motion to Facilitate § 216(b) Notice, but is, otherwise DENIED.
So ordered.
Notes
. This kind of "class action” is not brought pursuant to Fed.R.Civ.P. 23, though much of the same terminology is employed.
. Other district courts have approved this Court's reаsoning in
Kane
and adopted its approach.
See, e.g., Melendez Cintron v. Hershey P.R., Inc.,
. Nearly a year after filing their original complaint in state court, plaintiffs did add one new plaintiff, Stacey Moore ("Moore”), in their proposed amended complaint. The amended complaint states that Moore worked as an Account Manager in the Creative Group Division at RHI's Boston office from May, 2003, until February, 2004. No other plaintiffs were added.