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Boyd v. SFS Communications, LLC

United States District Court, D. Maryland

January 26, 2017

JAMES HERBERT BOYD, JR. ET AL., INDIVIDUALLY AND ON BEHALD OF ALL SIMILARLY SITUATIED INDIVIDUALS Plaintiffs
v.
SFS COMMUNICATIONS, LLC, ET AL. Defendants

          MEMORANDUM OPINION

          PETER J. MESSITTE, UNITED STATES DISTRICT JUDGE

         James 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 costs.

         The 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.

         I.

         Putative 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.

         Boyd, 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.

         The 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 565.

         II.

         An 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.

         At the 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).

         Following 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).

         In the 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.

         Accordingly, the Court GRANTS the Motion for Conditional Certification ...


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