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McFeeters v. Brand Plumbing, Inc.

United States District Court, D. Kansas

February 10, 2017

DUANE MCFEETERS, on behalf of himself and all others similarly situated, Plaintiff,
v.
BRAND PLUMBING, INC., Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE.

         Plaintiff Duane McFeeters, on behalf of himself and all others similarly situated, brings a claim against Defendant Brand Plumbing under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”). He claims that Defendant failed to pay its employees overtime premiums. This matter is before the Court on Plaintiff's Motion for Conditional Certification of Class Claims under § 216(b) of the FLSA (Doc. 28). Because the Court finds that Plaintiff has met the lenient standard for conditional certification, the Court grants Plaintiff's motion.

         I. Factual and Procedural Background

         Plaintiff Duane McFeeters was employed as a plumber by Defendant Brand Plumbing, Inc. and paid on an hourly basis. He alleges that Defendant violated the FLSA when it failed to pay him, and similarly situated employees, overtime premiums when they worked in excess of forty hours a week. Plaintiff seeks an order from this Court conditionally certifying a class under § 216(b) of the FLSA.

         Plaintiff provides a sworn declaration in which he states that Defendant compensated plumbers on an hourly basis. He states that plumbers frequently worked more than forty hours a week. Plaintiff contends that Defendant's policy provides that plumbers could not take work trucks home and thus plumbers had to report to Defendant's central business location to pick up and return the truck each day. He states that Defendant did not track and pay for drive time, particularly at the end of the work day. Plaintiff avers that Defendant did not pay for the time it took to drive back from the last job of the day to the central location. In addition, Plaintiff states that Defendant did not fully compensate plumbers for their drive time for jobs outside of Wichita. Thus, he contends that plumbers were not properly paid overtime compensation.

         Plaintiff asks the Court to (1) conditionally certify a class of all current and former employees of Defendant who held the position of plumber and who were not paid any overtime premium for hours in excess of forty from December 1, 2013 to the present; (2) authorize notice to be mailed to the class; (3) order Defendants to provide the names, last known addresses, last four digits of the individual's social security number, and date of birth of all putative class members in an electronic and importable format; (4) post Notice of this lawsuit in a conspicuous location where Defendant employs its employees; (5) toll the statute of limitations from the date of the filing of this motion until the close of the opt-in period; (6) designate Duane McFeeters as class representative; and (7) approve Plaintiff's counsel to act as class counsel.

         II. Legal Standard

         The FLSA permits legal action “against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.”[1] Unlike class actions pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure, a collective action brought under the FLSA includes only those similarly-situated individuals who opt into the class.[2] But the FLSA does not define what it means to be “similarly situated.” Instead, the Tenth Circuit has approved an ad hoc, two-step approach to § 216(b) certification claims.[3] The ad hoc approach employs a two-step analysis for determining whether putative opt-in plaintiffs are similarly situated to the named plaintiff.[4]

         First, in the initial “notice stage, ” the court “determines whether a collective action should be certified for purposes of sending notice of the action to potential class members.”[5]The notice stage “require[s] nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.”[6] The standard for conditional certification at the notice stage is lenient and typically results in certification for the purpose of notifying potential plaintiffs.[7]

         The second step of the ad hoc approach occurs after discovery.[8] At this stage, the district court applies a stricter standard and reviews the following factors to determine whether the opt-in plaintiffs are similarly situated: (1) the disparate factual and employment conditions of the individual plaintiffs; (2) defenses available to the defendant that are individual to each plaintiff; and (3) other fairness and procedural conditions.[9]

         III. Discussion

         A. Conditional Certification under FLSA § 216(b)

         Plaintiff seeks conditional certification of a class of individuals who worked for Defendant as plumbers and did not get paid overtime. Plaintiff alleges that Defendant had a policy, practice, and/or procedure of refusing to pay all overtime compensation to plumbers due to its policy of (1) not paying plumbers for the time it took to return the truck from the last job of the day to Defendant's facility, and (2) not fully paying for a plumber's drive time outside of Wichita. Defendant does not necessarily object to the conditional certification of a class, but it objects to the class definition and Plaintiff's request for equitable tolling.

         1. Class Definition Issues

         Plaintiff defines the class in his motion as “all current and former employees of Defendant Brand Plumbing, Inc. who held the position of plumber who were not paid any overtime premium for hours over 40 in any work week, from December 1, 2013 to the present as a consequence of not being credited or compensated for driving time in a company truck.”[10]With regard to this definition, Defendant contends that Plaintiff was, in reality, a “plumber's helper” and not a licensed plumber. It provides an affidavit which states that it has employees, three of which are its owners, who are licensed plumbers that are not paid on hourly basis. Thus, Defendant wants the class notice to state “plumber's helper” instead of plumber.

         Plaintiff contends that although Defendant states that its owners are plumbers and are not paid on an hourly basis, Defendant does not assert that any other licensed plumber or plumber was not paid on an hourly basis. Nor does Defendant point out that the position of plumber is exempt from overtime requirements under the FLSA. Accordingly, Plaintiff asserts that Defendant has not directed the Court to a meaningful distinction at this time.

         At this initial stage of conditional certification, there is no evidence that Defendant distinguished between job duties or pay structure (hourly) for licensed plumbers, plumbers, or plumber's helpers.[11] Indeed, at the initial stage, the Tenth Circuit does not require any quantum of evidence to be produced. This district has often stated: “Generally, where putative class members are employed in similar positions, the allegation that defendants engaged in a pattern or practice of not paying overtime is sufficient to allege that plaintiffs were together the victims of a single decision, policy or plan.”[12] In this case, the Court adopts a revised class definition to include the individuals (or the term) that ...


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