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Kraft v. Freight Handlers, Inc.

United States District Court, M.D. Florida, Orlando Division

May 21, 2019

JAMES KRAFT, Plaintiff,
v.
FREIGHT HANDLERS, INC. and FHI, LLC, Defendants.

          REPORT AND RECOMMENDATION

          GREGORY J. KELLY, JUDGE.

         This cause came on for consideration, without oral argument, on the following motion:

MOTION: CLASS REPRESENTATIVE'S MOTION FOR CONDITIONAL CLASS CERTIFICATION WITH INCORPORATED MEMORANDUM OF LAW (Doc. No. 60)
FILED:February 19, 2019
THEREON it is RECOMMENDED that the motion be GRANTED IN PART AND DENIED IN PART.

         I. BACKGROUND.

         On September 7, 2018, Plaintiff filed suit against Defendants for violations of the Fair Labor Standards Act (“FLSA”) for failure to pay overtime wages and a minimum wage as required by the FLSA for non-exempt employees. Doc. No. 1. Plaintiff alleges he, and those similarly situated, were employed to unload goods from trucks and break down pallets for Defendants as “Unloaders” at various warehouse and distribution facilities and that they were compensated on a production basis. Doc. No. 1 at 7; Doc. No. 60 at 3. Plaintiff alleges: (1) Unloaders were required to work prior to their regularly scheduled shifts and before they were clocked in; (2) managers were instructed to clock Unloaders out for approximately one hour each day while they continued to work; and (3) Unloaders were required to clock out at the end of the day and remain onsite performing unpaid work. Doc. Nos. 1 at 2; 60 at 3-4. Plaintiff alleges that despite working in excess of forty hours per week, he and other Unloaders were not properly compensated for their overtime, nor were they provided a minimum wage in some circumstances. Doc. No. 1 at 8.

         Defendants provide third-party logistics services assisting customers with receipt and distribution of goods at the customers' warehouses and distribution facilities.[1] Doc. Nos. 60 at 2-3; 69-1. Defendants employ “Freight Handlers” who assist in unloading and loading trucks at these facilities.[2] Doc. Nos. 60 at 3; 60-15; 69-1. Defendants' operations are divided into four regions (south, northeast, midwest, and west), each region has a regional manager who covers three to seven states with three to sixteen distribution centers. Doc. No. 69-1 at 3. The customers own the distribution centers, and Defendants provide unloading and other support services at 38 distribution centers, 14 of which are owned by Publix, Cheney Brothers, and Meijer grocery stores. Doc. No. 69-1 at 3. Defendants' written policies strictly prohibit off-the-clock work. Doc. No. 69-1 at 6-7. Defendants currently employ 1, 232 Freight Handlers at 38 distribution centers in 19 states. Doc. No. 69-1 at 7. While Freight Handlers all unload trucks and are paid on a production basis, they may be assigned other job duties and be paid hourly or flat rates in some instances. Doc. Nos. 69-1 at 8-9; 69-3.

         On February 19, 2019, Plaintiff filed a Motion to Conditionally Certify Collective Action and Facilitate Notice to Members of the FLSA Collective and Incorporated Memorandum of Law (the “Motion”). Doc. No. 60. Plaintiff seeks court-supervised notice to all Freight Handlers, employed by Defendants within the last three years.[3] Doc. No. 60 at 1. Plaintiff seeks class certification related to the requirement that Freight Handlers work off the clock and the related failure to pay overtime wages for those off-the-clock hours. Doc. No. 60 at 6. Three Freight Handlers filed consents with the Complaint (Eugene Couch, Marcus Kennedy, and Duvan Nichols), and as of the filing of the Motion, there were seven additional opt-in plaintiffs who, along with Plaintiff, worked in six different warehouse locations across four states as Freight Handlers working for Publix and Meijer. Doc. Nos. 2, 15, 19, 44, 45, 57, 58, 60 at 6 (James Wild, Edward Green, Luis Torres, Lavarius Vinson, Jimmian Alvarado, Richard Doggett, and Larry Holden). Two additional consents were filed after the Motion was filed (Eric Vega and Joshua Ergle). Doc. Nos. 61 and 62. Thus, a total of twelve consents have been filed.

         II. MOTION FOR CONDITIONAL CLASS CERTIFICATION.

         Plaintiff seeks relief under 29 U.S.C. § 216(b) of the FLSA and asks the Court to conditionally certify the aforementioned class. Doc. No. 60 at 1-2. Plaintiff also asks that he be appointed class representative. Id. He requests that the Court permit and supervise notice to the class using the Notice and opt-in form attached to the Motion, authorize notice via email, text and U.S. mail, authorize a reminder notice to be sent to the class, post the Notice at Defendants' facilities, and authorize members to sign their consents electronically. Id. Finally, Plaintiff asks that the Court order Defendants to provide him with information regarding everyone in the class. Id.

         A. Legal Standard

         There is a two-step procedure for whether a FLSA collective action should be certified: 1) the notice stage; and 2) the decertification stage. Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260 (11th Cir. 2008). The Motion falls under the notice stage. The notice stage is when “a district court determines whether other similarly situated employees should be notified.” Id.

         At the notice stage, “[a] plaintiff has the burden of showing a ‘reasonable basis' for his claim that there are other similarly situated employees.” Id. (quoting Anderson v. Cagle's, Inc., 488 F.3d 945, 952 (11th Cir. 2007)). The standard for determining similarity at the notice stage is fairly lenient, not particularly stringent, and not heavy. Morgan, 551 F.3d at 1261. In addition to determining whether there are similarly situated employees to the plaintiff, the court must also “satisfy itself that there are other employees of the []employer who desire to ‘opt-in' . . . .” Dybach v. State of Fla. Dep't of Corr., 942 F.2d 1562, 1567-68 (11th Cir. 1991).

         B. Other Employees Desiring to Opt In

         Plaintiff has the burden to provide a reasonable basis supporting his position that other aggrieved individuals exist in the broad putative class. Hart v. JPMorgan Chase Bank, N.A., No. 8:12-CV-00470-T-27, 2012 WL 6196035, at *4 (M.D. Fla. Dec. 12, 2012). Plaintiff asks the Court to conditionally certify a nationwide class of all Freight Handlers. Doc. No. 60 at 17. Defendants have indicated that they currently employ 1, 232 Freight Handlers at 38 distribution centers in 19 states and have ...


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