United States District Court, D. Maryland
MEMORANDUM AND ORDER RE: MOTION FOR CONDITIONAL
CERTIFICATION OF A COLLECTIVE CLASS
J. Garbis United States District Judge
Court has before it Plaintiff's Motion for Conditional
Certification of a Collective Class and to Facilitate
Identification and Notice to Similarly Situated Employees and
the materials submitted relating thereto [ECF No. 10]. The
Court finds that a hearing is not necessary.
The Parties and the Claims
Gerben (“Gerben” or “Plaintiff”)
brings an action individually and on behalf of other
similarly situated employees of O.T. Neighoff & Sons
(“OTN”) and Kenneth D. Neighoff (together,
“Defendants”). Plaintiff alleges that Defendants
did not pay him and other similarly situated employees their
full wages owed, including overtime wages, in violation of
the federal Fair Labor Standards Act (“FLSA”),
the Maryland Wage and Hour Law (“MWHL”), and the
Maryland Wage Payment and Collection Law
Gerben seeks class certification as well as recovery of
unpaid overtime wages, liquidated or treble damages, interest
and costs, and reasonable attorneys' fees.
Statement of Facts 
Defendant O.T. Neighoff & Sons, Inc. (“OTN”)
is a mid-sized painting and construction company in Glen
Burnie, Maryland, and Kenneth D. Neighoff is the owner of
OTN. Compl. at 4, ECF No. 1. Plaintiff Gerben was hired as a
“Painter/Foreman” for the Defendants on April 26,
2006, and held that same position until he was terminated on
February 17, 2017. Id. ¶¶ 24-25. As
Painter/Foreman, his duties included “painting, hanging
drywall, installing flooring[, ] driving the company van(s)
and/or truck(s), loading and unloading the van(s) and/or
truck(s), occasionally picking up paint or other supplies
from Defendants' vendors, . . . and supervising a crew of
two (2) to (5) employees on various job sites.”
Id. ¶ 26. Plaintiff was given a work schedule
each time he was assigned to a new job, and he would be
required to follow that work schedule unless the job changed
or unless he was reassigned to another job. Id.
¶ 28. Plaintiff states that he had no discretion in
choosing his assignments. Id. ¶ 43.
was paid as an hourly employee. Id. ¶ 51. He
would begin his day at Defendants' location, pick up his
crew, “dispose of the trash left . . . the previous
day, ” load up the company vans or trucks with
equipment, and drive to the job site. Id.
¶¶ 29-30. Occasionally on the way to the job site,
Plaintiff would pick up paint and/or supplies from
Defendants' chosen vendors. Id. ¶ 30.
Although shift times would often vary, Plaintiff would work
about 8 to 10 hours on-site per shift. Id. ¶
36. After the shift was complete, Plaintiff would
“gather the equipment, load the van(s) and/or truck(s)
with any leftover and/or unused materials, and return to the
Glen Burnie headquarters.” Id. ¶ 39.
work hours were tracked on time sheets, and he was only
permitted to “clock in” and be paid for the time
that he was physically at the job site. Id. ¶
30. Defendants “made clear that Plaintiff and other
similarly situated employees were not to fill out any other
times as their sign-in time or their sign-out time.”
Id. ¶ 35. In other words, Plaintiff alleges he
was not paid for the time spent before and after the shift
loading the trucks, driving to and from the site, and picking
up supplies. As a result, Plaintiff states that he and other
similarly situated employees would often work as many as 60
to 65 hours a week without being paid for the time spent on
job related duties before and after clocking in to the job
site. Id. ¶¶ 42-43. Plaintiff
estimates that he was not compensated for 1 to 2 such
overtime hours per day. Id. ¶ 57. He alleges
that Defendants knew about the extra unpaid hours that
Plaintiff puts in each day yet “withheld additional
regular and overtime wages owed” and refused to take
corrective action when Plaintiff asked about compensation for
these hours. Id. ¶ 60.
allegations are brought on behalf of similarly situated
employees with titles such as “Painter/Foreman,
Painter, Laborer, and other titles consistent with general
construction and remodeling work.” Id. ¶
62. He alleges that these hourly employees “were
subject to the same practices, ” worked “over
forty (40) hours per week, ” and were harmed by
“Defendants' common scheme to underpay its
employees.” Id. ¶¶ 63, 65, 72.
Plaintiff now seeks the conditional certification of a
collective class to facilitate identification and notice to
similarly situated employees so that they may
“opt-in” to the collective action. Pl.'s Mot.
at 11, ECF No. 10-1.
FLSA challenge is brought under Section 207 of the FLSA,
which governs overtime compensation. Section 216(b) of the
FLSA authorizes collective actions if employees are
An action to recover the liability prescribed in [Section 207
and other sections] may be maintained against any employer .
. . in any Federal . . . court of competent jurisdiction by
any one or more employees for and in behalf of himself or
themselves and other employees similarly situated. No
employee shall be a party plaintiff to any such action unless
he gives his consent in writing to become such a party and
such consent is filed in the court in which such action is
29 U.S.C. § 216. As such, Section 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.'” Mackall v. Safelite Grp., Inc.,
No. CV CCB-17-2145, 2017 WL 6039717, at *2 (D. Md. Dec. 5,
2017). District courts “have discretion, in appropriate
cases, to allow such claims to proceed as a collective action
and to facilitate notice to potential plaintiffs.”
Quinteros v. Sparkle Cleaning, Inc., 532 F.Supp.2d
762, 771 (D. Md. 2008).
these cases, the court should first determine that plaintiffs
have demonstrated that potential class members are similarly
situated such that court-facilitated notice to the putative
class members would be appropriate, and second, after
discovery closes, the court should conduct “a
‘more stringent inquiry' to determine whether the
plaintiffs are in fact ‘similarly situated, ' as
required by § 216(b).” Mackall, 2017 WL
6039717, at *2.
case is in its first stage, the “notice” stage.
Thus, the question now at issue 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.” Id. Plaintiffs
are “similarly situated” “if its members
can demonstrate that they were victims of a common policy,
scheme, or plan that violated the law.” Id.
do not need to make a showing that their claims are
“identical.” Id. Rather, at this stage,
plaintiffs are only required to make “a relatively
modest factual showing, ” and they “cannot
reasonably be expected . . . ...