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Christeson v., LLC

United States District Court, D. Kansas

May 16, 2019

WYATT CHRISTESON, individually and on behalf of a class of similarly situated employees, Plaintiff,


          KATHRYN H. VRATIL United States District Judge

         Wyatt Christeson brings suit against, LLC on behalf of himself and others similarly situated, alleging that defendant violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. This matter is before the Court on Plaintiff's Unopposed Motion For Conditional Certification Of Proposed Settlement Class And Preliminary Approval Of the Parties' Settlement Agreement And Release And Notice To Settlement Class Members (Doc. #40) filed April 30, 2019. For reasons stated below, the Court sustains the motion in small part.

         I. Factual And Procedural Background

         A. Lawsuit And Claims

         Defendant operates fulfillment centers for the online retailer From January 25, 2015 to March 31, 2018, defendant employed eight IT Support Engineers, including plaintiff. Defendant pays its IT Support Engineers an hourly rate, plus time and one-half for each hour worked over 40 hours in a workweek.

         On January 25, 2018, plaintiff filed a putative FLSA collective action on behalf of himself and all similarly situated employees who regularly worked more than 40 hours per week and did not receive compensation for overtime hours. See Complaint (Doc. #1) filed January 25, 2018 at 1. Plaintiff asserts that defendant advises its IT Support Engineers the maximum number of hours they are permitted to record for each week - 40, 49 or 55 hours - and that they are not permitted to record additional hours, regardless whether their job duties require additional hours. He asserts that when an IT Support Engineer records more than the maximum hours, a supervisor instructs the engineer to revise his or her timesheet to reflect the permitted maximum. Plaintiff further asserts that the engineer is not paid for such overtime work.

         Defendant disputes plaintiff's claims and asserts that IT Support Engineers are responsible for accurately recording their time and that defendant prohibits them from performing off-the-clock work. Defendant asserts that its records establish that it never failed to compensate plaintiff or any other IT Support Engineer for compensable work, and that plaintiff never performed unrecorded work. Alternatively, defendant asserts that any FLSA violation was not willful.

         B. First Motion For Settlement Approval

         On August 6, 2018, the parties informed the Court that they had reached a settlement agreement. See Joint Notice Of Settlement (Doc. #20). On November 9, 2018, the parties reduced their agreement to writing. See Third Joint Status Report (Doc. #27). On December 10, 2018, they filed motions for approval of the settlement agreement, attorney's fees and costs and service award. See Joint Motion To Approve Settlement Agreement And Release (Doc. #29); Plaintiff's Unopposed Motion To Approve Fees, Costs, And Expenses (Doc. #31); Plaintiff's Unopposed Motion To Approve Service Award (Doc. #33).

         On January 29, 2019, the Court overruled all three motions because the parties had failed to seek conditional certification of the proposed class and preliminary settlement approval before asking for final certification and settlement approval. Memorandum And Order (Doc. #35) at 9. The Court explained the proper procedure for an FLSA settlement and, in anticipation of a renewed motion, identified several defects with the proposed settlement. Among other things, the Court stated that any renewed motion for settlement approval should (1) narrow overly-broad releases; (2) remove confidentiality provisions; (3) remove a non-disparagement clause; and (4) remove a prohibition on plaintiff's future employment with defendants. Id. at 12-15. In addition, the Court noted its concern about settlement agreements in which defendants agree not to object to or oppose a fee request. Id. at 16. The Court further noted that if low plaintiff participation caused a large portion of the maximum fund to revert to defendant, it would affect the Court's assessment of the reasonableness of the requested attorney's fees and service award. Id. at 16-17.

         C. Motion For Conditional Certification, Notice Approval And Preliminary Settlement Approval

         On April 30, 2019, plaintiff filed an unopposed motion for conditional certification of the proposed class, preliminary approval of the amended settlement agreement and release, and approval of the proposed notice to class members. Motion For Conditional Certification (Doc. #40) at 1-2.

         Plaintiff asks the Court to conditionally certify a collective action consisting of “[plaintiff] and seven other IT Support Engineers who worked for [defendant] at any time between January 25, 2015, and March 31, 2018 (the ‘Settlement Class Members').” Id. at 1. Under the amended settlement agreement, defendant agrees to pay each Settlement Class Member who opts in (“Participating Plaintiff”) $250.00 plus approximately $195.00 for each instance in which the Participating Plaintiff recorded 40, 49 or 55 hours in a workweek. This entitles each Participating Plaintiff to between $250.00 and $3, 762.00, depending on his or her timesheets. If all seven IT Support Engineers opt in and become Participating Plaintiffs, defendant will pay up to $61, 636.00, which includes plaintiff's request for up to $35, 000.00 in attorney's fees, up to $2, 467.62 in costs and up to a $5, 000.00 service award to plaintiff. After it issues settlement payments, defendant will retain any unclaimed funds, subject to the following proviso: “If the Court determines that this provision is not proper due to a low participation rate among the Settlement Class Members or for any other reason, [defendant] agrees that it will redistribute any unclaimed funds from the Net Settlement Amount on a pro-rata basis to the Participating Plaintiffs.” Amended Settlement Agreement at 8, Exhibit 1 To Motion For Conditional Certification (Doc. #40). Class Counsel will seek approval of the cost and fee award and service award when he or she requests final approval of the amended settlement agreement and dismissal of the lawsuit.

         In addition, Participating Plaintiffs agree to release the following claims (the “Participating Plaintiffs' Released Claims”) ...

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