United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE, UNITED STATES DISTRICT JUDGE
THE COURT are Plaintiffs' Motion for Conditional
Certification and Court-Authorized Notice Pursuant to 29
U.S.C. § 216(b) (Dkt 34), and Defendants' response
(Dkt. 46). Upon consideration, the motion is GRANTED.
Ace Homecare was a home health agency that had several
locations in the State of Florida and employed hundreds of
employees. The seven named plaintiffs were employed by Ace
Homecare at its Sebring, Florida location (also referred to
as the Avon Park facility) until their termination when all
of Ace Homecare's facilities were shut down. Six were
employed as nurses and one as a home health aid.
(See Plaintiffs' Declarations, Dkts. 25-29).
During the last two weeks of Plaintiffs' employment, from
February 29, 2016 to March 13, 2016, Plaintiffs and the
purported similarly situated employees received no
compensation. Plaintiffs seek conditional certification of a
FLSA collective action and judicial notice to two putative
classes of employees who were allegedly denied minimum wage
pay while working for Ace Homecare during the last three
years. The first proposed putative FLS A class includes
"[a]ll nurses who worked for Defendants within the last
three years" and the second proposed putative class
includes "[a]ll other employees who worked for
Defendants within the last three years." (Dkt. 34 at 3).
to 29 U.S.C. § 216(b), certification of collective
actions in FLS A cases is based on a theory of judicial
economy, by which "[t]he judicial system benefits by
efficient resolution in one proceeding of common issues of
law and fact arising from the same alleged discriminatory
activity." Hoffmann-La Roche Inc. v. Sperling,
493 U.S. 165, 170(1989). Courts utilize a two-tiered approach
in making collective action certification determinations
under the FLSA:
The first determination is made at the so-called "notice
stage." At the notice stage, the district court makes a
decision - usually based only on the pleadings and any
affidavits which have been submitted - whether notice of the
action should be given to potential class members. Because
the court has minimal evidence, this determination is made
using a fairly lenient standard, and typically results in
"conditional certification" of a representative
class. If the district court "conditionally
certifies" the class, putative class members are given
notice and the opportunity to "opt-in." The action
proceeds as a representative action throughout discovery.
The second determination is typically precipitated by a
motion for "decertification" by the defendant
usually filed after discovery is largely complete and the
matter is ready for trial. At this stage, the court has much
more information on which to base its decision, and makes a
factual determination on the similarly situated question.
Hipp v. Liberty Nat'l Life Ins. Ca, 252F.3d
1208, 1218 (11th Cir. 2001); see also Cameron-Grant
v. Maxim Healthcare Servs., Inc., 347 F.3d
1240, 1243 n.2 (11th Cir. 2003).
notice stage, the court must initially determine: 1) whether
there are other employees who desire to opt in to the action;
and 2) whether the employees who desire to opt in are
"similarly situated." Dybach v. State of Fla.
Dep't of Corrs., 942F.2d 1562, 1567-68 (11thCir.
1991). This determination is made using a fairly lenient
standard. Cameron-Grant, 347 F.3d at 1243 n.2.
However, the plaintiff must offer "detailed allegations
supported by affidavits which successfully engage
defendants' affidavits to the contrary." Grayson
v. K Mart Corp., 79 F.3d 1086, 1097 (11th Cir. 1996)
(internal quotations and citation omitted). Ultimately, the
court must satisfy itself that there are other employees who
are similarly situated and who desire to opt in.
Dybach, 942 F.2d at 1567-68.
Other Opt-in Plaintiffs
have the burden of demonstrating a reasonable basis for
crediting their assertions that aggrieved individuals exist
in the broad class that they proposed." Haynes v.
Singer Co., Inc., 696 F.2d 884, 887 (11th Cir. 1983).
Evidence of other employees who desire to opt in may be based
on affidavits, consents to join the lawsuit, or expert
evidence on the existence of other similarly-situated
employees. Davis v. Charoen Pokphand (USA), Inc.,
303 F.Supp. 2d. 1272, 1277 (M.D. Ala. 2004).
support of their argument that there are other employees who
desire to opt in to this action, the seven Plaintiffs have
submitted declarations in which they attest that they,
"along with hundreds of other people, [were] terminated
as part of a mass shutdown by Defendant." (See,
e.g., Dkt. 29 ¶ 8, 10). As such, Plaintiffs have
demonstrated a reasonable basis for crediting the assertion
that other aggrieved employees exist in the classes they
propose. See Haynes, 696 F.2d at 887; see also
Bell v. Mynt Entm't, LLC,223 F.R.D. 680, 683 (S.D.
Fla. 2004) (affidavits from seven plaintiffs indicating
others desired to opt in and detailing allegations of wage
violations were ...