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Wilson v. Maxim Healthcare Services, Inc.

United States District Court, W.D. Washington, Seattle

December 22, 2014

ROBERT WILSON, et al., Plaintiffs,


ROBERT S. LASNIK, District Judge.

This matter comes before the Court on plaintiffs' pre-discovery motion for conditional certification of a collective action. Dkt. # 10. Having reviewed the memoranda, declarations, and exhibits submitted by the parties, the Court finds as follows.


In May 2014, named plaintiffs Robert Wilson and Eric McNeal filed this case as a collective action seeking to recover unpaid wages under § 216(b) of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq. Dkt. # 1 (Compl.). Plaintiffs were employed as Staffing Recruiters for defendant. Id . ¶¶ 11-12. They contend that during their employment with defendant they were misclassified as exempt from overtime compensation and thus wrongly denied this compensation for time worked in excess of 40 hours per week, in violation of the FLSA and Washington's Minimum Wage Act, R.C.W. § 49.46, et seq. Id . ¶¶ 39-60.

Plaintiffs filed the instant motion on July 15, 2014, seeking conditional certification of a nationwide collective action consisting of all of defendant's current and former Staffing Recruiters who worked for defendant "during the past three years". Dkt. # 10 at 1. Plaintiffs seek conditional certification so that notice may be sent to potential class members notifying them of this action and their ability to "opt-in." Id. at 3-4. Plaintiffs request that the Court order defendant to produce the names, job titles, contact information and certain employment and personal information of these employees, as well as approve the proposed notice that plaintiffs have provided. Id. at 1-3. Named plaintiffs and three other "opt-in" plaintiffs (who also worked for defendant as Recruiters) have filed five declarations in support of the instant motion. Dkt. ## 5-7, 31.

Plaintiffs agreed to renote their motion for September 28, 2014. Dkt. # 22. In August 2014, the Court denied defendant's request to engage in limited expedited discovery concerning whether the case should proceed as a collective action. Dkt. # 28.

Defendant Maxim Healthcare Services, Inc. ("Maxim") provides recruiting services on a nationwide basis to a wide variety of clients. Dkt. # 34 (Goldberg Decl. ¶ 2). Defendant's argument in response to plaintiffs' motion is that plaintiffs cannot make the requisite showing at this stage of litigation that they are "similarly situated" to the putative class members, given the wide variety of job duties that defendant's Staffing Recruiters perform across its various business lines. Dkt. # 32. Defendant has produced declarations from 12 Recruiters in support of its opposition to plaintiffs' motion, Dkt. ## 35-46, along with a declaration from a Maxim executive speaking to the varied nature of Recruiters' roles and responsibilities within Maxim, Dkt. # 34 (Goldberg Decl.).


A. Collective Action Certification

The FLSA requires covered employers to pay their employees a minimum wage and overtime wages for hours worked in excess of 40 per week, 29 U.S.C. §§ 206, 207, and provides that an employee may bring a collective action on behalf of himself and other "similarly situated" employees for violating the Act, 29 U.S.C. § 216(b). In contrast to class actions brought pursuant to Fed.R.Civ.P. 23, § 216(b) collective actions are "opt-in, " meaning that employees who seek to join the action must file a written consent with the district court. Bollinger v. Residential Capital, LLC, 761 F.Supp.2d 1114, 1119 (W.D. Wash. 2011). A purported class member's statute of limitations continues to run until he joins the collective action. Centurioni v. City and Cnty. of San Francisco, 2008 WL 295096, at *3 (N.D. Cal. Feb. 1, 2008). The decision whether to certify a collective action is within the discretion of the district court, and plaintiffs bear the burden of showing that they and the putative class members are "similarly situated." Adams v. Inter-Con Sec. Sys., 242 F.R.D. 530, 535 (N.D. Cal. 2007) (citation omitted).

The FLSA does not define the term "similarly situated, " and the Ninth Circuit has not yet interpreted the term; nevertheless, courts in this Circuit apply a two-step inquiry to determine whether a collective action should be certified, involving preliminary and then final determinations of whether class members are "similarly situated." Benedict v. Hewlett-Packard Co., 2014 WL 587135, at *5 (N.D. Cal. Feb. 13, 2014); Bollinger, 761 F.Supp.2d at 1119; Wynn v. Nat'l Broad. Co., Inc., 234 F.Supp.2d 1067, 1082 (C.D. Cal. 2002).

(i). Conditional Certification

At the first stage, the Court determines whether the representative plaintiffs and putative class members are "similarly situated" such that a collective action should be conditionally certified for the purpose of sending notice of the action to the latter (so that they may decide whether to opt in). Benedict, 2014 WL 587135, at *5. At this "notice stage, " the Court requires little more than "substantial allegations, " supported by evidence, that the entire proposed class was subject to a "single decision, policy or plan that violated the law." Id . (citation omitted). "Because there is little evidence before the court at this stage, the court must rely on the pleadings and affidavits submitted by the parties in deciding whether potential plaintiffs should receive notice." Bollinger, 761 F.Supp.2d at 1119. The "similarly situated" standard at this phase is fairly lenient and typically results in certification, Kress v. PricewaterhouseCoopers, LLP, 263 F.R.D. 623, 627-28 (E.D.Cal. 2009) (citation omitted). While the "similarly situated" standard here is "considerably less stringent" than Rule 23's requirement that common questions predominate over individual ones, courts seek an indication that hearing plaintiffs' claims together will promote judicial economy, as well as serve the remedial purposes of the FLSA. See Benedict, 2014 WL 587135, at *5 (citations omitted); Wood v. TriVita, Inc., 2009 WL 2046048, at *4 (D. Ariz. Jan. 22, 2009).

In "misclassification" cases such as this one, where the plaintiffs' theory is that defendant misclassified them as exempt, the plaintiffs must show that they and the putative class members performed similar job duties. Kress, 264 F.R.D. at 629-30; Trinh v. JP Morgan Chase & Co., 2008 WL 1860161, at *13 (S.D. Cal. Apr. 22, 2008). This is because the Court's concern in such cases is "whether plaintiffs' evidence indicates that the propriety of the classification may be determined on a collective basis." Benedict, 2014 WL 587135, at *8 (quoting Kress, 263 F.R.D. at 630). The nature of an employee's job duties dictates whether he falls under an exemption, and thus the similarities between employees' duties dictates whether their claims should be tried together. See Kress, 264 F.R.D. at 629-30; Trinh, 2008 WL 1860161, at *13. Some courts have also emphasized whether plaintiffs can show that they and the putative class members fell under similar compensation schemes, Trinh, 2008 WL 1860161, at *3; Bollinger, 761 F.Supp.2d at 1119; or whether plaintiffs have provided some indication that their claims would rely on common evidence. See, e.g., Trinh, 2008 WL 1860161, at *5. But see Hensley v. Eppendorf N. Am., Inc., 2014 WL 2566144, at *7 (S.D. Cal. June 6, 2014) (showing of common proof not necessary at the notice stage where the court could infer its existence from the evidence presented). Critically, plaintiffs need not conclusively establish that collective action is proper, because defendants will be free to revisit this issue at the close of discovery. Kress, 264 F.R.D. at 630.

(ii). Decertification

The second stage occurs after discovery is complete, usually on defendant's motion to decertify. Khadera v. ABM Indus., Inc., 701 F.Supp.2d 1190, 1194 (W.D. Wash. 2010). At this point, the Court uses a stricter standard for determining whether the plaintiffs are similarly situated. Troy v. Kehe Food Distributors, Inc., 276 F.R.D. 642, 649 (W.D. Wash. 2011). The Court must consider several factors at this stage, including the specific duties and conditions of employment of the individual plaintiffs, and the various defenses available to the defendant with respect to the individual plaintiffs. Id .; Romero v. Producers Dairy Foods, Inc., 235 F.R.D. 474, 482 (E.D. Cal. 2006). If the Court, considering the additional evidence acquired during discovery, determines that the plaintiffs are not similarly situated, it may decertify the class and dismiss the opt-in plaintiffs without prejudice. Romero, 235 F.R.D. at 482. Occasionally, courts skip the lenient first-stage analysis and proceed directly to applying a second-stage level of scrutiny where substantial discovery has been completed. Smith v. T-Mobile USA, Inc., 2007 WL 2385131, at *4 (C.D. Cal. Aug. 15, 2007) (collecting cases).

B. Administrative Exemption

Although the Court is not ruling on the merits of plaintiffs' claims at this stage, it is relevant to note the substantive basis for their collective action. An employee is exempt from 29 U.S.C. § 207 if he is employed in an "administrative" capacity. 29 U.S.C. § 213(a)(1). An employee receiving a salary of over $455 per week is administrative if his "primary duty" is "the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers, " and his "primary duty includes the exercise of discretion and independent judgment with respect to matters of significance." 29 C.F.R. §§ 541.200(a)(2-3); 541.600(a). In turn, work directly relates to an employer's management or general business operations where it directly relates "to assisting with the running or servicing of the business." 29 C.F.R. § 541.201(a). This does not include merely "the day-to-day carrying out" of the business' affairs. Bothell v. Phase Metrics, Inc., 299 F.3d 1120, 1125 (9th Cir. 2002). An employee's primary duties must constitute exempt work for him to fall under the administrative exemption, 29 C.F.R. § 541.700; and determining an employee's primary duties requires examining "all the facts in a particular case" and "the character of the employee's job as a whole." 29 C.F.R. § 541.700(a). Regulations emphasize that a job title alone is insufficient to establish an employee's exempt or nonexempt status, and that the employee's "salary and duties" are determinative. 29 C.F.R. § 541.2.


Consistent with its prior order denying limited expedited discovery, Dkt. # 28, the Court will rule on plaintiffs' motion for conditional certification under the lenient standard generally applied at the notice stage. Thus, the question before the Court is whether plaintiffs and the proposed class members are similarly situated ...

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