ORDER
This matter is before the Court on a Motion for Conditional Collective Action Certification (the Motion) pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b), by Plaintiff Brandon Te-gtmeier (Tegtmeier or Plaintiff), on behalf of himself and similarly situated delivery drivers of Defendant PJ Iowa, L.C. (PJ Iowa). PJ Iowa resists. Neither party requested a hearing on the Motion, and the Court finds a hearing is unnecessary. The matter is fully submitted and ready for disposition.
I. BACKGROUND
PJ Iowa operates twenty-six Papa John’s franchise stores in Iowa, Illinois, and South Dakota. From January to September 2014, Tegtmeier was employed by PJ Iowa as a delivery driver in Davenport, Iowa. During Tegtmeier’s employment, PJ Iowa paid Tegtmeier a cash wage of $5.50 per hour and applied a tip credit for all of Tegtmeier’s work time. On October 15, 2015, Tegtmeier filed a Complaint against PJ Iowa for violation of the FLSA, 29 U.S.C. § 201 et seq., and of Iowa law. Tegtmeier filed an Amended Complaint on December 3, 2015. PJ Iowa moved to dismiss Tegtmeier’s state law claims on December 17, 2015, and the Court granted in part and denied in part that motion on May 18, 2016. ECF No. 50.
The Amended Complaint makes three separate FLSA minimum wage claims. Count I alleges that PJ Iowa improperly applied a tip credit to Tegtmeier’s and other delivery drivers’ wages because PJ Iowa required delivery drivers to spend over 20% of their time performing non-tipped duties. Count II alleges that PJ Iowa reimbursed delivery drivers for vehicle expenses at an unduly low rate, resulting in net wages below the federal minimum wage. Count III alleges that PJ Iowa required delivery drivers to purchase uniforms and driving records at their own expense, also resulting in net wages below the federal minimum wage. Though the Amended Complaint contains three federal claims on behalf of an “opt-in” collective action of similarly situated delivery drivers pursuant to 29 U.S.C. § 216(b),
A. Vehicle Expense Reimbursement Claims
Tegtmeier argues that PJ Iowa uses a vehicle expense reimbursement formula that results in wages paid to delivery drivers that fall below the minimum wage. PJ Iowa pays its delivery drivers between $5.50/hour and $8.25/hour, depending on the state. As of February 2016, the bottom of PJ Iowa’s pay scale was $5.50/hour in Iowa, $6.00/hour in South Dakota, and $6.25/hour in Illinois, all below the federal minimum wage of $7.25/hour. For employees whose nominal pay falls below the applicable minimum wage rate(s), PJ Iowa uses a tip credit and provides a minimum wage adjustment when tips do not bring a delivery driver’s wages up to the minimum wage. All of PJ Iowa’s delivery drivers share the same title and written job description, and generally perform the same job duties.
PJ Iowa’s delivery drivers incur certain expenses for operating their vehicles on the job. PJ Iowa’s written policies require delivery drivers to use their own vehicles to deliver orders, and drivers must ensure that the vehicles are safe and reliable. Drivers’ vehicles are subject to inspection, and if a vehicle does not pass inspection, a driver may not operate that vehicle on the job. Drivers are also required to maintain insurance coverage and also incur expenses from fuel and depreciation while operating their vehicles on the job.
PJ Iowa reimburses its delivery drivers for their vehicle expenses by remitting 5% of the net sales of that driver’s delivery orders. This net sales figure includes all sales from delivery orders, including when multiple deliveries are made on a single trip and also including unsuccessful deliveries, but after accounting for any discounts or coupons used by the customer. PJ Iowa records neither the actual miles traveled by its delivery drivers nor its delivery drivers’ actual vehicle expenses, and it does not require its delivery drivers to record these figures. PJ Iowa does, however, track the actual reimbursement amounts remitted to drivers each shift and reimburses delivery drivers in cash at the end of each shift. This vehicle reimbursement policy applies to all of PJ Iowa’s delivery drivers, and has since at least 1997.
Though PJ Iowa does not track its delivery drivers’ miles traveled during deliveries, Tegtmeier has attempted to calculate the effect of PJ Iowa’s vehicle expense reimbursement policy on delivery drivers’ wages based on certain deposition testimony from PJ Iowa’s Rule 30(b)(6) witness, Mark Hauder. Hauder testified that the average price per order at PJ Iowa over the last three years was around $20, though that figure would be higher if only delivery orders were taken into account. Using this information, Tegtmeier estimates that PJ Iowa delivery drivers would expect to receive $1.00 per delivery, on average. Though Hauder said he did not know the average distance for PJ Iowa’s deliveries, he testified that PJ Iowa’s stores typically have a maximum delivery zone within a two-to three-mile radius from the store, or a distance that can be reached in a 12-or 13-minute trip.
Tegtmeier’s expert, Paul Lauria, uses these figures to compare PJ Iowa’s estimated per-delivery vehicle reimbursement
Tegtmeier compares his personal reimbursement amounts to the IRS Standard Mileage Rate. In his brief supporting the Motion, Tegtmeier claims that he personally received only $0.15 per mile in reimbursements based on the data provided by PJ Iowa regarding Tegtmeier’s shifts.
The Court notes that the Amended Complaint contains contrary allegations regarding PJ Iowa’s reimbursement policy. In the Amended Complaint, Tegtmeier alleges that PJ Iowa’s policy is to reim
B. Driving Record Claims
PJ Iowa requires applicants for a delivery driver position to provide PJ Iowa with a copy of their Motor Vehicle Record at the time of their interview. Tegtmeier alleges that it cost him $25. to provide his driving record to PJ Iowa, and that because he was paid the minimum wage, this cost reduced his net pay below the minimum wage. Tegtmeier argues that this policy applies to all of PJ Iowa’s delivery drivers.
II. DISCUSSION
A. Standard for Conditional FLSA Collective Action Certification
Section 216(b) of the FLSA provides that a plaintiff may maintain an action to recover for violations of the FLSA on behalf of “themselves and other employees similarly situated.” 29 U.S.C. § 216(b). “No employee shall be a party plaintiff to any such action 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.” Id. Such actions on behalf of similarly situated employees are known as collective actions; and § 216(b)’s opt-in requirement makes a FLSA collective action unlike an opt-out class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. Perrin v. Papa John’s Intern., Inc., No. 4:09CV01335AGF,
Courts in this Circuit typically engage in a two stage analysis when a plaintiff seeks to certify a FLSA collective action pursuant to § 216(b). Putman v. Galaxy 1 Mktg., Inc.,
In the second stage, the Court determines definitively whether the named plaintiff is similarly situated with the other plaintiffs who have opted in. Bouaphakeo,
Nevertheless, the question of whether to certify a FLSA collective action lies with the discretion of the district court, and the Court may also vary from the above analysis at its discretion. Bouaphakeo,
B. Conditional Certification Analysis 1. Vehicle Expense Reimbursement Claim
Tegtmeier argues that conditional certification is appropriate because he has shown, based on testimony from PJ Iowa’s Rule 30(b)(6) witness and interrogatory responses, that PJ Iowa’s reimbursement policy applies to all of its delivery drivers. That policy reimburses delivery drivers based on five percent of the net sales from deliveries. Tegtmeier argues that this policy under-reimburses the actual vehicle expenses of all delivery drivers, and because delivery drivers are paid at or near the federal minimum wage (inclusive of the tip credit), their actual wages are below the federal minimum wage.
Tegtmeier has provided' “some factual basis from which the court can determine
PJ Iowa makes a number of arguments in opposition. First, PJ Iowa argues that Tegtmeier has not shown that other potential plaintiffs are similarly situated to Tegtmeier due to Tegtmeier’s prior statements regarding PJ Iowa’s policy. Te-gtmeier stated in his deposition that he received $5 per shift, and that any records showing otherwise would be inaccurate. If Tegtmeier were actually subject to a reimbursement policy that was different from the policy that applied to all other drivers, then those drivers would not be similarly situated to Tegtmeier. However, while this Court need not make findings of fact at the conditional certification stage, see Andersen,
PJ Iowa also argues that Tegtmeier is not similarly situated to other PJ Iowa delivery drivers because PJ Iowa’s records show that Tegtmeier received no vehicle expense reimbursement for a large number of his deliveries. PJ Iowa says that it believes Tegtmeier received no reimbursement for these shifts due to an error on his part while clocking in. This is an argument better addressed for a later stage in this litigation. Tegtmeier has not argued in this case that PJ Iowa failed to pay him the minimum wage because Tegtmeier received zero reimbursements for certain shifts. Rather, Tegtmeier argues that PJ Iowa under-reimburses delivery drivers for their vehicle expenses based on a reimbursement policy whose rate is set too low. Whether, upon greater scrutiny, these no-reimbursement shifts render Tegtmeier’s personal “factual and employment setting! ]” unduly distinct from other delivery drivers is not a question for the Court to address at this time. See Bouaphakeo,
PJ Iowa also argues that its vehicle reimbursement formula is inherently variable because the amounts reimbursed fluctuate based on the amount of sales. Because different drivers receive different reimbursement amounts on a day to day basis, and even the same driver receives different amounts on a shift to shift basis under PJ Iowa’s formula, PJ Iowa argues
PJ Iowa also argues that the inherent variability of each driver’s vehicle expenses defeats collective action treatment, as each driver’s expenses may differ depending on the particular delivery routes taken and vehicles used by each driver. PJ Iowa notes that Tegtmeier himself used two different vehicles to make deliveries during his time at PJ Iowa and conceded that his expenses differed accordingly. It seems plain that Tegtmeier and other PJ Iowa’s delivery drivers will not have incurred equal expenses, even on a rate basis. But that is not the relevant standard. See, e.g., Bouaphakeo,
2. Driving Record Claim
Tegtmeier also seeks conditional collective action certification for his claim that PJ Iowa violated the FLSA’s minimum wage provisions by requiring delivery drivers to submit their driving record as a
PJ Iowa argues that Tegtmeier must show not only that putative collective action plaintiffs were subject to a common policy but also that the common policy violated the law, and that Tegtmeier has failed to overcome his burden with respect to the latter. PJ Iowa argues that costs incurred by an employee prior to employment do not enter into a minimum wage calculation under the FLSA; and in this case, delivery drivers had no employment relationship with PJ Iowa, not even an offer of employment, when they purchased their driving records. Thus, PJ Iowa argues, Tegtmeier fails to allege a colorable FLSA violation, and collective action treatment of this claim would be inappropriate. In response, Tegtmeier argues that employers must reimburse certain pre-em-ployment expenses to the point that wages are at least equivalent to the minimum wage, so PJ Iowa still should have reimbursed its delivery drivers for their driving record purchases.
PJ Iowa cites the following language from Carden v. Scholastic Book Clubs, Inc., No. 2:10-cv-01112-NKL,
Nevertheless, the Court retains considerable discretion to manage the instant proceedings.
C. Notice to Potential Plaintiffs
Tegtmeier requests the Court approve the proposed Notice of Collective Action Lawsuit (the Notice), ECF No. 38-38, and Plaintiff Consent Form (the Consent Form), ECF No. 38-39, attached to the motion for certification. PJ Iowa raises a number of objections.
As mentioned above, this Court has the authority to facilitate notice to potential plaintiffs in a collective action. Hoffmann-La Roche Inc. v. Sperling,
PJ Iowa objects to the Notice as inaccurate and incomplete. Specifically, PJ Iowa objects to the use of the phrases “Class” or “Class Member” in the Notice because this case is a FLSA collective action, not a Rule 23 class action. The Court finds that the use of the term “Class” in the Notice is not misleading, as it is clear from the Notice that potential plaintiffs must opt in to participate in the litigation. PJ Iowa also objects to the statement that, the instant lawsuit “may affect your rights,” which appears in large, bold font on the top of the first page, with similar language also appearing under Question 1 on page 2. The Court notes that this type of language appears in notices used in other collective action cases, including in this District. See Ex. A to Mot. to Issue Notice to Similarly Situated Persons (Proposed Notice), at 1, Putman, No. 3:10-ev-00072-JAJ-RAW (S.D. Iowa Mar. 22, 2011), ECF No. 57-2 at 4 (authorized in part by Putman,
PJ Iowa points out that the Notice states that depositions take place in “Davenport, Missouri.” Assuming that is a scrivener’s error, Tegtmeier is directed to replace “Missouri” with “Iowa.” The Court finds no other issue with informing potential plaintiffs that depositions may take place in Davenport, where this case was filed.
PJ Iowa also argues that the Notice, as proposed, implies judicial endorsement. The Court does not find that the header of the Notice containing the name of the Court implies judicial endorsement of the merits of the action. This Court has previously approved collective áction notices bearing a header containing the name of the Court, and such a header helps to identify this notice as distinct from solicitation from a lawyer or junk mail. See Putman,
PJ Iowa argues that the Notice improperly encourages interaction with Tegtmeier’s counsel via phone and email. PJ Iowa cites two orders from another district court prohibiting any communication between named plaintiffs’ counsel and potential opt-in collective action members, but neither those cases nor PJ Iowa provide a reason why this Court must prohibit potential opt-in members from having questions answered by Plaintiffs counsel. See Hipp v. Liberty Nat’l Life Ins. Co.,
PJ Iowa also objects to Tegtmeier’s request for an order to produce the dates of birth of potential plaintiffs. PJ Iowa argues that Tegtmeier provided no rationale for producing that kind of personally identifying data, and Tegtmeier did not respond on reply. The Court agrees with PJ Iowa that production of birth dates does not appear to be necessary. If potential plaintiffs cannot be located via their mailing address, the parties should meet and confer regarding what further information should be shared to locate potential plaintiffs.
Finally, PJ Iowa objects to Te-gtmeier’s proposed 90-day opt-in period and proposes a 60-day period instead. As in Perrin, “this Court sees no need for such an extended period in this case 60 days is sufficient time to notify putative class members and allow them to decide whether to opt-in.” Simmons v. Valspar Corp.,
III. CONCLUSION
For the reasons provided, it is ordered that:
1. Tegtmeier’s Motion for Conditional Collective Action Certification, ECF No. 38, is granted consistent with the provisions of this Order.
2. Notice of pendency of this action shall be sent to all individuals who worked for PJ Iowa as a delivery driver between October 13, 2012, and the present.
3. The Notice, ECF No. 38-38, and Consent Form, ECF No. 38-39, as set forth in exhibits to the Motion are approved, with the exception of the changes ordered above.
4. PJ Iowa shall have until 14 days following this Order to provide Plaintiffs counsel the names, last known addresses, dates of employment, and the location and store number of the store at which each potential collective action member works or worked.
5. Plaintiffs counsel shall have 10 days from receipt of the information listed above to circulate the Notice and Consent Form via U.S. Mail.
6. Putative opt-in plaintiffs shall have 60 days from the circulation of the Notice and Consent Form in which to opt in to this action.
7. The statute of limitations will be equitably tolled for potential opt-in plaintiffs from March 23, 20Í6, until the 60-day notice period begins to run.
IT IS SO ORDERED.
Notes
. Upon a motion for conditional certification, the Court is tasked with determining whether a plaintiff has shown "some factual basis beyond the mere averments in their complaint” in support of certification. West v. Border Foods, Inc., Civil No. 05-2525(DWF/RLE),
. The one exception is the uniform costs portion of Count III, which was brought on behalf of an opt-in collective action of similarly situated non-supervisory employees.
. Tegtmeier has stated that he does not intend to move for collective action certification for the remaining FLSA claims nor for class action certification pursuant to Rule 23 for the extant state law claims. See ECF Nos. 55-56.
. To calculate this mileage figure, Tegtmeier takes the sum of the vehicle reimbursements in his personal Team Member Checkout Report, provided as Exhibit 11 to the Motion, and divides that total reimbursement figure by a figure that apparently represents the sum total of the distances between the delivery addresses listed on the Team Member Checkout Report when entered into Google Maps. It is unclear whether this miles-driven denominator includes all deliveries listed in the Team Member Checkout Report or all deliveries for which Tegtmeier received a reimbursement. Tegtmeier reported no miles driven (and thus received no reimbursement) on over half of his shifts. PJ Iowa believes that Tegtmeier received no vehicle reimbursements for these shifts because Tegtmeier mistakenly indicated he was driving a company car when he clocked in for those shifts.
. Using data gleaned from Tegtmeier’s Team Member Checkout Report and Google Maps, Tegtmeier estimates an average 4.15 miles traveled per delivery.
. In fact, the above-quoted language originates in an opinion from the Southern District of New York, in which then-Judge Soto-mayor explicitly states that "the Court need not evaluate the merits of plaintiffs’ claims in order to determine that a definable group of 'similarly situated’ plaintiffs can exist here.” Hoffmann v. Sbarro, Inc.,
. The procedural certification of a FLSA collective action is not mandated by statute or rule as Rule 23 governs ordinary opt-out class actions; instead, courts have imposed these
[I]t is important to stress that the "certification” we refer to here is only the district court's exercise of the discretionary power, upheld in Hoffmann-La Roche[Inc. v. Sperling Co.,493 U.S. 165 ,110 S.Ct. 482 ,107 L.Ed.2d 480 (1989)], to facilitate the sending of notice to potential class members. Section 216(b) does not by its terms require any such device, and nothing in the text of the statute prevents plaintiffs from opting in to the action by filing consents with the district court, even when the notice described in Hoffmann-La Roche has not been sent, so long as such plaintiffs' are "similarly situated” to the named individual plaintiff who brought the action. See Morgan v. Family Dollar Stores, Inc.,551 F.3d 1233 , 1259 (11th Cir.2008) (noting that "certification” of a collective action is a device to facilitate notice to potential class members and does not actually "create a class of plaintiffs” for a FLSA collective action). Thus "certification” is neither necessary nor sufficient for the existence of a representative action under FLSA, but may be a useful "case management” tool for district courts to employ in “appropriate cases.” Hoffmann-La Roche,493 U.S. at 169, 174 ,110 S.Ct. 482 .
Myers v. Hertz Corp.,
. Accordingly, Tegtmeier is directed to correct the heading of the Notice so it reflects that this case was filed in the Davenport Division of this Court. The Court also directs Tegtmeier to closely review the Notice to ensure that it is free of any other scrivener's errors.