United States District Court, D. Maryland
JAMES HERBERT BOYD, JR. ET AL., INDIVIDUALLY AND ON BEHALD OF ALL SIMILARLY SITUATIED INDIVIDUALS Plaintiffs
SFS COMMUNICATIONS, LLC, ET AL. Defendants
J. MESSITTE, UNITED STATES DISTRICT JUDGE
Herbert Boyd, Jr. brings this action on behalf of himself and
others similarly situated against SFS Communications, LLC
(“SFS”); Ferdous Ahmed Sharif
(“Sharif”); CU Employment, Inc. (“CU
Employment”); Communications Unlimited Contracting
Services, Inc. (“CUCSI”); Communications
Unlimited, Inc. (“CUI”); Communications Unlimited
Marketing Services, Inc. (“CUMSI”); Jack Spears
(“Spears”); and Martin C. Rocha
(“Rocha”) (“Defendants”). He proceeds
under the Fair Labor Standards Act (“FLSA”), 29
U.S.C. §§ 201 et seq., the Maryland Wage
and Hour Law, Md. Code Ann., Lab. & Empl. §§
3-413 and 3-415, and the Maryland Wage Payment and Collection
Law, Md. Code Ann., Lab & Empl. §§ 3-502,
3-503, 3-505 and 3-507.2. On behalf of the proposed
collective action members, Boyd seeks to recover unpaid
minimum and overtime wages; improper deductions; liquidated
damages and interest; and attorney's fees and litigation
Court considers Plaintiffs' Motion for Conditional
Certification Pursuant to 29 U.S.C. § 216(b) and [for
Approval of] Notice [to proposed collective action members].
ECF No. 37. For the reasons that follow, the Motion is
GRANTED IN PART AND DENIED IN PART.
collective action Plaintiffs are current or former
technicians and installers who install internet and cable
services, troubleshoot connectivity and service issues,
collect cable boxes and routers that no longer work, instruct
customers on how to use internet and cable services, and
perform electrical work for SFS in Maryland, Virginia, and
the District of Columbia. ECF No 37-1 at 10. SFS, a company
owned and operated by Sharif, is a subcontractor of CUI,
CUCSI, CUI and CUMSI (collectively the “CUI
Enterprise”). ECF No. 1 ¶ 9. Rocha is an officer,
director and owner of CUI Enterprise, Id. ¶ 16,
and Spears is the Regional Manager of CUI Enterprises.
Id. ¶ 18.
on behalf of the proposed collective action Plaintiffs,
alleges that Defendants collectively “knowingly
fail[ed] to pay [collective action] Plaintiffs and all
persons similarly situated for all overtime hours worked
and/or by incorrectly computing the overtime pay due
[collective action] Plaintiffs and other similarly situated
persons and/or failing to pay the applicable minimum wage
rates.” ECF No. 1 ¶ 40. According to collective
action Plaintiffs, Defendants compensate them on a piece rate
basis for each installation, but allegedly fail to provide
any compensation (or less than full compensation) for
overtime. ECF No. 37-1 at 12. Defendants also allegedly make
a variety of deductions - e.g., traffic tickets - from
collective action Plaintiffs' paychecks without their
consent, causing their pay to fall below minimum wage.
Id. at 13.
Court at this stage of the litigation considers two issues:
First, whether to conditionally certify this as an FLSA
collective action. Butler v. DirectSAT USA, LLC, 876
F.Supp.2d 560, 566 (D. Md. 2012). Second, if the Court does
so, it must then approve a notice to potential collective
action members informing them of the lawsuit and their
opportunity to opt into the collective action. Unlike class
actions brought pursuant to Fed.R.Civ.P. 23, FLSA collective
actions are an “opt-in scheme.” Id. at
action may be brought under the FLSA “against any
employer (including a public agency) in any Federal or State
court of competent jurisdiction by any one or more employees
for and on behalf of himself or themselves and other
employees similarly situated.” 29 U.S.C § 216.
“Determinations of the appropriateness of conditional
collective action certification and court-facilitated notice
are left to the court's discretion.” Syrja v.
Westat, Inc., 756 F.Supp.2d 682, 686 (D. Md. 2010).
Courts determine whether employees are similarly situated for
the purposes of the FLSA in two stages.
present stage of the litigation, where Plaintiffs seek to
send notice to other prospective collective action members,
courts “make a threshold determination of
‘whether the plaintiffs have demonstrated that
potential class members are similarly situated, '”
“such that court-facilitated notice to the putative
class members would be appropriate.” Syrja v.
Westat, Inc., 756 F.Supp.2d 682, 686 (D. Md.
2010)(quoting Camper v. Home Quality Mgmt., Inc.,
200 F.R.D. 516, 519 (D.Md.2000)). To clear this threshold,
courts have only required a “modest showing.”
Butler, 876 F.Supp.2d at 567. The evidence need not
“enable the court to determine conclusively whether a
class of ‘similarly situated' plaintiffs
exists.” Id. While mere allegations in the
complaint alone do not suffice, “factual evidence by
affidavits or other means, ” can accomplish the
required showing. Williams v. Long, 585 F.Supp.2d
679, 684 (D. Md. 2008).
conditional certification of the collective action and after
discovery, courts engage in a more stringent exercise to
determine whether to unconditionally certify the collective
action. Rawls v. Augustine Home Health Care, Inc.,
244 F.R.D. 298, 300 (D. Md. 2007).
present case, the parties have stipulated to a proposed
collective action membership of “all current and former
Technicians/Installers who performed installation repair work
in Maryland, Virginia, and Washington, DC for SFS from
September 24, 2012 to the present.” ECF No. 38 at 1. In
support of that contention, nine Plaintiffs submitted
affidavits attesting to their routine work hours and the
mechanism by which they were paid. See ECF Nos.
37-2, 37-3, 37-4, 37-5, 37-6, 37-7, 37-8, 37-9, 37-10.
the Court GRANTS the Motion for Conditional Certification