Summary
granting conditional class certification where the plaintiffs submitted affidavits and payroll records showing failure to pay overtime wages
Summary of this case from Simpson v. Caresouth HHA Holdings, LLCOpinion
Case No.: 2:06-cv-622.
February 13, 2007
DEFAULT JUDGMENT
The summons and complaint in this action was served on the above-named defendants on, August 1, 2006 as to defendants Melinda Haney and Brian Haney, and October 10, 2006 as to defendant Spectrum Industrial Services, and said defendants failed to plead or otherwise defend in this action. The default was duly noted by the Clerk on December 6, 2006. A Motion for Default Judgment, filed by plaintiffs on December 28, 2006, is now before this Court.
I. Finding of Willful Violations of the Fair Labor Standards Act and Conditional Certification of the Class
Due to defendants' failure to answer the complaint, the plaintiffs' motion for default judgment is now before the Court. The default was noted by the Clerk on December 6, 2006, and once the Court determines that the defendant is in default, the factual allegations of the complaint are taken as true. Fed. Trade Comm'n v. Kitco of Nevada, Inc., 6T2 F. Supp. 1282 (D.C. Minns. 1985). Plaintiffs' allege in the complaint that defendants violated the Fair Labor Standards Act and the Ohio Minimum Wage Act by failing to pay overtime for hours worked over 40 in a work week. Additionally, plaintiffs have submitted payroll records that support their allegations. In the complaint, plaintiffs allege that defendant's violations of the FLSA were willful ones. Since defendants have not responded, this Court hereby finds that the defendants, Spectrum Industrial Services, Melinda Haney, and Brian Haney have willfully violated 28 U.S.C. §§ 2201 and 2202 and Ohio Revised Code § 4111.
As this case was brought as a collective action pursuant to 29 U.S.C. § 216(b), the Court now conditionally certifies the class. Defendants have not participated in this case, nor disputed any facts raised in the complaint or affidavits submitted by the plaintiffs. The strict requirements of Rule 23 of the Federal Rules of Civil Procedure do not apply to FLSA collective actions. Miklos v. Golman-Hayden Companies, Inc., 2000 WL 1617969, at *1 (S.D. Ohio 2000). Instead, plaintiffs must only meet the threshold requirement that potential class members are "similarly situated." 29 U.S.C. § 216(b).
Plaintiffs bear the burden of establishing that they and the class they wish to represent are similarly situated. See Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996). The Sixth Circuit has not yet determined what standard to apply in considering whether potential class members are "similarly situated." Pritchard v. Dent Wizard International Corp., 210 F.R.D. 591, 595 (S.D. Ohio 2002); Viciedo v. New Horizons Computer, Learning Center of Columbus, Ltd., 2:01-cv-250 (S.D. Ohio 2001). In the absence of appellate guidance, this Court looks to other districts and circuits, which have addressed the question with various methods. "Some courts hold that a plaintiff can demonstrate that potential class members are `similarly situated,' for purpose of receiving notice, based solely upon allegations in a complaint of class-wide illegal practices. Pritchard, 210 F.R.D. at 595 ( quoting Belcher v. Shoney's, Inc., 927 F. Supp 249, 251 (M.D. Tenn. 1996). An alternative, more stringent test, requires that the plaintiffs make a "modest factual showing" that the similarly situated requirement is satisfied. Pritchard, 210 F.R.D. at 595-596; Belcher, 927 F. Supp. at 251. The factual showing can be accomplished by using such factors as "whether potential plaintiffs were identified; whether affidavits of potential plaintiffs were submitted; and whether evidence of a widespread discriminatory plan was submitted." Pritchard, 210 F.R.D. at 596 ( quoting H R Block, Ltd. V. Housden, 186 F.R.D. 399, 400 (E.D. Tex 1999) (citations omitted).
In the current case, plaintiffs have met their burden under either of the standards discussed above. Using the less restrictive standard, i.e., mere allegations in the complaint of class-wide illegal practices, the Court concludes that plaintiffs have sufficiently set forth allegations of Spectrum Industrial Services' class-wide practice of not paying any overtime for hours over 40 in a work week. Applying the more restrictive standard, i.e., factual support for the class allegations in the complaint, the Court concludes that plaintiffs have met this standard as well.
The affidavits of the two named plaintiffs display that potential class members are similarly situated. Both plaintiffs purport that defendants willfully refused to pay one-and-one-half times the regular hourly rate for all hours over 40 in the week and that each plaintiff consistently over 40 hours in a given week. See Affidavit of Plaintiff Candy Sniffen ¶¶ 5 and 10; Affidavit of Plaintiff Peggy Stebleton ¶¶ 5 and 8. Plaintiffs have also submitted payroll records that document the defendants' failure to pay overtime. Plaintiffs' have clearly met their burden of proof, and as such, this Court now conditionally certifies the class for notice purposes.
Because defendants' violation of the FLSA has been found to be willful, the relevant statute of limitations is three years from the time plaintiffs (and any plaintiffs who later opt-in to this lawsuit) have filed their notice of consent to join this action. 29 U.S.C § 216(b). Plaintiffs (and any later opt-ins) therefore are entitled to damages for the three years preceding the filing of their notice of consent.
II. Court Permitted Notice
As this Court has conditionally certified the class of similarly situated plaintiffs, defendants are hereby ordered to promptly provide to plaintiffs' counsel the names, last known addresses, and phone numbers of all of the defendants' employees since July 21, 2003 that were paid in the manner described infra so that they may be properly notified of the pending action. The defendants are required to deliver the names and addresses of past employees by March 15, 2007. The notice period will be open for 90 days from plaintiffs' receipt of the names and addresses. The Court hereby grants plaintiffs permission to post notice of this action in a newspaper of general circulation in the surrounding area of the defendants' location. The notice period will then run 60 days from the first date of publication. The proposed language for the notice submitted by the plaintiffs is hereby approved by this Court.
III. Court Ordered Discovery
The Court hereby further orders that defendants promptly provide to plaintiffs' counsel the dates of employment, number of hours worked, and wages paid for each employee that is identified through Section II of this order. Any payroll documents for these employees still in the defendants' possession need to be released as well. This information is necessary to calculate the damages that are owed to the class of plaintiffs. This information is to be supplied to plaintiffs' counsel no later than March 15, 2007.
IV. Formula for Calculating Weekly Wages
Once the Court ordered discovery is received, the calculation of wages owed should be straightforward. For every hour over 40 that was worked in a given week, the plaintiff was only paid the regular hourly rate instead of time and a half as mandated by the FLSA. Therefore, plaintiffs are owed the difference between the number of hours over 40 worked multiplied by time and a half and the amount that they were actually paid. Plaintiffs' attorneys have attached a spreadsheet that explains this formula and which the Court deems to be an acceptable method of calculation.
V. Award of Liquidated Damages
Because defendants have failed to respond to plaintiffs' complaint, defendants have therefore failed to prove that their violation of the FLSA was "in good faith" and that they had "reasonable grounds for believing that their act or omission was not a violation" under 29 U.S.C § 216(b). Therefore, plaintiffs are entitled to liquidated damages in an equal amount to wages lost.
VI. Award of Attorney Fees and Expenses
This Order constitutes an award of judgment to the plaintiffs, subject to a motion for fees to be submitted to the Court by plaintiffs within 90 days of this Order to determine the amount and the reasonableness of these fees. Additionally, attorney fees and costs incurred by plaintiffs' counsel in sending notice to the class, collecting judgment and in any future proceedings will also be considered for a further award of fees and costs at an appropriate time upon motion of the plaintiffs.
VII. Conclusion
NOW, on motion of Robert E. DeRose, the attorney for the plaintiffs, it is hereby ORDERED and ADJUDGED the defendants have willfully violated the FLSA and the OMWA. The plaintiff class has been conditionally certified and notice to all members of the class is hereby ordered. Additionally, Candy Sniffen and Peggy Stebleton, the plaintiffs, do recover from the defendants, Spectrum Industrial Services located at 9608 Cottage Grove Avenue, Lakeview, Ohio 43331 and as to Melinda Haney and Brian Haney, residing at 21 Hunter Place, P.O. Box 5, Bellefontaine, Ohio 43311, the sum of $15,442.84, the amount claimed, plus interest in the sum of $1,654.31. This order shall be enforceable by all lawful means, including the contempt power of this Court.