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Gerben v. O.T. Neighoff & Sons, Inc.

United States District Court, D. Maryland

January 18, 2018

DAVID GERBEN, Plaintiff
v.
O.T. NEIGHOFF & SONS, INC., et al. Defendants

          MEMORANDUM AND ORDER RE: MOTION FOR CONDITIONAL CERTIFICATION OF A COLLECTIVE CLASS

          Marvin J. Garbis United States District Judge

         The 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.

         I. BACKGROUND

         A. The Parties and the Claims

          David 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 (“MWPCL”).

         Plaintiff Gerben seeks class certification as well as recovery of unpaid overtime wages, liquidated or treble damages, interest and costs, and reasonable attorneys' fees.

         B. Statement of Facts [1]

          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.

         Plaintiff 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.

         Plaintiff's 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.[2] 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.

         Plaintiff's 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.

         II. LEGAL STANDARD

         Plaintiff's 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 “similarly situated”:

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 brought.

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).

         In 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).”[3] Mackall, 2017 WL 6039717, at *2.

         This 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.

         They 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 . . . ...


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