United States District Court, D. Maryland
Catherine C. Blake United States District Judge
Lamar Mackall and Ryan Hunter worked as technicians for
defendant Safelite Group, Inc. (“Safelite”), an
automobile windshield and window repair company. Plaintiffs
have sued defendant under the federal Fair Labor Standards
Act of 1938 (“FLSA”), 29 U.S.C. §§ 201,
et seq.; the Maryland Wage and Hour Law
(“MWHL”), Md. Code Ann., Lab. & Empl.
§§ 3-401, et seq.; and the Maryland Wage
Payment and Collection Law (“MWPCL”), Md. Code
Ann., Lab & Empl., §§ 3-501, et seq.
Before the court are the plaintiffs' motion for
conditional certification of an FLSA collective action and
for the court's assistance in identifying and notifying
similarly situated employees and the defendant's motion
for leave to file a surreply. For the reasons that follow,
the motion for leave to file a surreply will be granted, and
the motion for conditional class certification will be
granted in part and denied in part.
and Hunter were each employed as technicians by Safelite,
which has seventeen locations in Maryland. Mackall was
employed at Safelite's Columbia location from June 2013
to May 2017, and Hunter was employed at the Woodlawn,
Reisterstown, and Columbia locations from September 2009 to
June 2017. (Mackall Decl. ¶ 4, ECF No. 7-2; Hunter Decl.
¶ 4, ECF No. 7-3.) Specifically, Hunter worked at the
Reisterstown location from September 2009 to August 2013, the
Woodlawn location from August 2013 to October 2016, and at
the Columbia location from October 2016 to June 2017. (Beiter
Decl. ¶ 5, ECF No. 18-1.) The following facts are taken
primarily from the plaintiffs' declarations submitted in
support of the pending motion.
technicians, Mackall and Hunter received service tickets
assigning them repair work for Safelite. Technicians had to
complete all assigned tickets by the end of each work day.
They received base pay at an hourly rate and a
nondiscretionary “Pay Per Performance” bonus
calculated according to the repair work they completed. The
plaintiffs allege that they and other technicians typically
worked longer than 40 hours per week. Technicians' hours
would increase during periods of inclement weather or other
instances that resulted in damage to windshields and car
windows. Allegedly, technicians had their time sheets
adjusted down to 40 hours according to the “Forty Hour
Plan.” As a result, they did not receive overtime
compensation in their base pay or nondiscretionary bonuses.
The plaintiffs claim that if they refused to sign the
adjusted time sheets, they would be penalized with a
reduction in assigned service tickets, resulting in a reduced
nondiscretionary bonus. They claim they saw other employees
receive such penalties and that they and others did not
receive adequate overtime compensation for their work. In
January 2017, the plaintiffs state that Safelite held
meetings in which they announced a new pay policy and
admitted the illegality of their previous pay policies.
(See generally, Hunter Decl., ECF No. 7-3; Mackall
Decl., ECF No. 7-2; Compl.)
and Hunter filed suit on July 31, 2017, asserting claims for
unpaid overtime wages under the FLSA, MWHL, and MWPCL. On
September 11, 2017, they filed their motion for conditional
certification of a collective class and to facilitate
identification and notice to similarly situated employees
under 29 U.S.C. § 216(b) of the FLSA. (ECF No. 7-1.) In
the memo accompanying that motion, they identified similarly
situated employees as “employees hired by Defendants to
perform work as technicians at Defendant's Maryland
locations…during the period of March 1, 2014, to the
present time.” Id. at 9.
filed its opposition on October 16, 2017. (ECF No. 18.) The
plaintiffs filed their reply on October 30, 2017, in which
they expanded the requested class as follows:
All individuals who were employed as technicians by Defendant
within Defendant's Mid-Atlantic Region, which includes
Maryland, Virginia, and Delaware, during the time period
ranging from July 31, 2014 to January 1, 2017, and who did
not receive proper compensation for all overtime hours worked
in violation of the FLSA.
(Reply Def.'s Opp. Mot. Conditional Class Certification
at 9, ECF No. 20).
filed a motion for leave to file a surreply on November 2,
2017, to challenge the introduction of a new proposed class
definition in Plaintiffs' reply.
the FLSA, a collective action “may be maintained
against any employer . . . by any one or more employees for
and in behalf of himself or themselves and other employees
similarly situated.” 29 U.S.C. § 216(b). After the
initial complaint is filed, other similarly situated
employees may become party plaintiffs by giving
“consent in writing to become such a party and such
consent is filed in the court in which such action is
brought.” Id. Thus, § 216(b)
“establishes an ‘opt-in' scheme, whereby
potential plaintiffs must affirmatively notify the court of
their intentions to be a party to the suit.”
Quinteros v. Sparkle Cleaning, Inc., 532 F.Supp.2d
762, 771 (D. Md. 2008). “When deciding whether to
certify a collective action pursuant to the FLSA, courts
generally follow a two-stage process.” Butler v.
DirectSAT USA, LLC, 876 F.Supp.2d 560, 566 (D. Md.
2012). “In the first stage, commonly referred to as the
notice stage, the court makes 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.'” Id. (quoting
Syrja v. Westat, Inc., 756 F.Supp.2d 682, 686 (D.
Md. 2010) (some internal quotation marks omitted)). “In
the second stage, following the close of discovery, the court
conducts a ‘more stringent inquiry' to determine
whether the plaintiffs are in fact ‘similarly situated,
' as required by § 216(b).” Id.
(citation omitted). Thus, the central question here is
whether the plaintiffs have proffered enough for the court to
make the threshold determination that they are similarly
situated to a group of potential plaintiffs. Similarly
situated does not mean identical. Id. “Rather,
a group of potential FLSA plaintiffs is ‘similarly
situated' if its members can demonstrate that they were
victims of a common policy, scheme, or plan that violated the
law.” Id. To meet their burden at this stage,
the plaintiffs must make “a relatively modest factual
showing” to that effect. Randolph v. PowerComm
Const., Inc., 7 F.Supp.3d 561, 575 (D. Md. 2014)
(internal quotation marks omitted). “Mere allegations
in the complaint are not sufficient; some factual showing by
affidavit or otherwise must be made.” Camper v.
Home Quality Mgmt. Inc., 200 F.R.D. 516, 519 (D. Md.
2000). Employees cannot reasonably be expected, however, to
have evidence of a stated policy of refusing to pay overtime.
Quinteros, 532 F.Supp.2d at 772.
statute of limitations to bring a claim under the FLSA is two
years after the cause of action accrues, or three years if
the violation is willful. 29 U.S.C. § 255(a). When there
is conflicting evidence, “the issue of willfulness is
an issue of material fact to be determined at trial.”
Gionfriddo v. Jason Zink, LLC, 769 F.Supp.2d 880,
891 (D.Md. 2011).
case, the plaintiffs have made a modest factual showing that
they are similarly situated to other technicians and were
subject to a common policy, scheme, or plan, that violated
the law. According to their declarations, plaintiffs
performed the same job duties of windshield and window repair
according to the same service ticket assignment system. The
need to complete their tickets, long scheduled shifts, and
periods of increased demand for their services all led to
working overtime for which they were not compensated.
Supervisors adjusted their time sheets down to 40 hours to
avoid paying overtime wages. The plaintiffs say they know of
workers who did not approve the reduced time sheets and were
penalized with reduced workloads, resulting in reduced pay.
They were threatened with the same penalty if they did not
approve the altered time sheets. This reduction was allegedly
part of a “Forty Hour Plan” meant to avoid
overtime pay for Safelite employees. The plaintiffs and other
technicians were not compensated for the overtime they
worked, in accordance with the “Forty Hour Plan.”
Taken together, these facts indicate that the technicians
were subject to a common policy, scheme, or plan that
deprived them of overtime wages to which they were entitled.
See Butler, 876 F.Supp.2d at 568 (granting motion
for conditional certification of satellite dish installation
technicians where, ...