United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
GREGORY J. KELLY, JUDGE.
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
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
provide third-party logistics services assisting customers
with receipt and distribution of goods at the customers'
warehouses and distribution facilities. Doc. Nos. 60 at
2-3; 69-1. Defendants employ “Freight Handlers”
who assist in unloading and loading trucks at these
facilities. 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
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. 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.
MOTION FOR CONDITIONAL CLASS CERTIFICATION.
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.
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.
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).
Other Employees Desiring to Opt In
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 ...