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Blake v. Broadway Services, Inc.

United States District Court, D. Maryland

September 13, 2018

HENRY L. BLAKE JR., et al.,


          Catherine C. Blake, United States District Judge.

         This is an overtime dispute. The plaintiffs, security personnel of varying rank employed by Broadway Services, Inc., claim that they were deprived of the "time-and-a-half overtime wages to which they were entitled under the federal Fair Labor Standards Act ("FLSA"). They have thus sued Broadway Services, Inc. under the 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. At issue here is the plaintiffs' motion to conditionally certify a collective action pursuant to § 216(b) of the FLSA and to enlist the court's assistance in identifying, locating, and notifying potential class members. For the reasons considered below, the motion will be granted in part and denied in part.


         Broadway Services, Inc. ("BSI") is a Maryland corporation. It provides commercial security and concierge services to businesses, municipalities, hospitals, and universities in the Baltimore/Washington D.C. area. (See generally Pls.' Mot., ECF No. 15, Ex. 9-10).[1] It is a sizable operation-the BSI website asserts that Silver Star Security, BSI's security division, "is one of the largest security forces in the region." (Pls.' Mot., ECF No. 15, Ex. 9). The plaintiffs in this case are current and former security personnel employed by BSI including those who have served as Security Officers, Sergeants, Lieutenants, Captains, and Majors. (Pls.' Mot., ECF No. 15 at p. 18). They have submitted a series of declarations and other materials in support of their motion for conditional certification. (See generally Pls.' Decls., ECF Nos. 15-2 - 15-11). The defendant filed its response to the plaintiffs' motion for conditional certification. (ECF No. 18). It submitted numerous exhibits in support of its opposition. (ECF No. 18-1). The plaintiffs timely replied to, the defendant's opposition. (ECF No. 19).

         The plaintiffs' primary contention in this case is that the defendant failed to properly compensate them for overtime hours worked. (Pls.' Mot., ECF No. 15 at p. 3). They argue that, without exception, each plaintiff served as an hourly employee and none were salaried. (Id.) The plaintiffs further assert that BSI is a centralized operation, noting that, while there may be nominal divisions within BSI's corporate structure and disparate client locations, management, human resources, and executive officers are housed together at BSI's Monument Street headquarters in Baltimore. (Id. at p. 4). The plaintiffs uniformly report that they were routinely required to work far beyond 40 hours a week but that, at least upon obtaining the rank of Lieutenant, or making more than $11.36 an hour, they were rendered ineligible for overtime compensation. (See, e.g., Hall Deck at ¶ 9, ECF No. 15-4).

         There are some inconsistencies on this point between the plaintiffs' declarations. The declarations of Henry L. Blake, Jr. and Herman Hunter support the contention that the denial of overtime compensation extends to all security personnel, not just those making in excess of $11.36 an hour. Both Mr. Blake and Mr. Hunter began their tenure with BSI with wages above this threshold (Blake began as a Major; Hunter as a Lieutenant) but affirm that they were told by other employees that the overtime policy extends to the full gamut of security personnel. (See Blake Decl. at ¶ 5, ECF No. 15-2; Herman Decl. at ¶ 9, ECF No. 15-5). Meanwhile, the declarations of Regina Hall and Sean Robinson recount a slightly different policy. Ms. Hall and Mr. Robinson both entered BSI as Security Officers and were subsequently promoted to Captain and Major respectively. (See Hall Decl. at ¶ 3, ECF No. 15-4; Robinson Decl. at ¶ 3, ECF No. 15-7). They report that they were paid time and a half until they reached the rank of Lieutenant, at which point they stopped receiving time and a half for overtime hours worked. (See Hall Decl. at ¶ 9, ECF No. 15-4; Robinson Decl. at ¶ 9, ECF No. 15-7). The defendant, for its part, argues that Lieutenants and their superiors are exempt from the FLSA's overtime requirements, thus effectively conceding that these security personnel were not paid overtime. (See, e.g., McNamee Aff. at ¶ 9, ECF No. 18-1). By contrast, it argues that personnel below the rank of Lieutenant were, at all times, paid time and a half beyond the 40-hour threshold. (Id. at ¶ 10).

         The defendant paints a different and much more fragmented picture of BSI's operations. While the Monument Street headquarters may be the center of BSI's operations, it claims, BSI's composite security divisions are widely segregated. Silver Star Security ("SSS"), for example, provides clients with security personnel ranging from Security Officers to Majors. (See McNamee Aff. at ¶¶ 22-23, ECF No. 18-1). Corporate Security ("CS"), by contrast, provides clients with only Security Officers and, perhaps, Sergeants. (Id. at ¶ 23). According to McNamee's affidavit, CS clients also set and monitored the work schedules and pay rates of the security personnel provided by CS. (Id.) That said, it is unclear from the briefing who pays CS Sergeants (if they exist)[2] and whether there are exceptions to McNamee's insistence that BSI does not set CS officers' pay rates. ((See McNamee Aff. at ¶ 22, ECF No. 18-1) (stating merely that "[i]n most cases CS's clients provided their own supervision" (emphasis supplied); see also ECF No. 15-11, BSI's Human Resources Bulletin, listing scores of CS employees as "our employees")). Finally, the defendant spends considerable time contending that the respective officers' job descriptions are too disparate to permit class certification under the FLSA. (See, e.g., Def.'s Opp'n, ECF No. 18 at p. 8).

         Plaintiff Henry Blake first filed this suit as an individual cause of action. He has since amended the complaint to incorporate the claims of Henry C. Ward and Regina Penelope. (Pls.' Mot., ECF No. 15 at p. 1). Since that time, two additional employees have exercised their statutory right to opt-in. (Id. at p. 2). The plaintiffs filed this motion to certify a class on March 3, 2018. They request the court certify a class of:

any and all security employees for the three (3) year period preceding the date of the filing of this lawsuit (beginning January 10, 2015) through the date that this Motion is granted, who have worked for Defendant Broadway Services, Inc. at any location where Defendant provides security services.

(Pls.' Mot., ECF No. 15 at p. 6). The plaintiffs also ask the court to facilitate notice to potential plaintiffs by U.S. Mail, email, and text message. (Id. at p. 16).


         Under the FLSA, plaintiffs may bring a collective cause of action against their employer for violations of the Act's substantive provisions. The Act's enforcement provision specifically dictates that "[a]n action to recover liability prescribed [by the statute] may be maintained against any employer ... by any one or more employees for and on behalf of himself [sic] 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).

         Despite sharing a similar legal standard, the "opt-in" process and certification of a collective action under the FLSA are distinct procedural mechanisms. Plaintiffs, for example, are permitted to "opt-in" to a § 216(b) action before the action is certified (indeed, two employees have done so here) and irrespective of whether a collective action is ever certified. Certification, in the FLSA context, is merely the trial court's exercise of discretionary power to notify potential class members. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989). As the Second Circuit explained in a widely-cited footnote, "certification is neither necessary nor sufficient for the existence of a representative action under FLSA, but may be a useful 'case management' tool for district courts to employ in 'appropriate cases.'" Myers v. Hertz Corp., 624 F.3d 537, 555 n.10 (2d Cir. 2010). So long as plaintiffs are similarly situated, they can join a § 216(b) action regardless of whether it is certified.

         Given this prelude, the discrete issue here is conditional certification. "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) (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. This case resides at the first stage. And thus the crux of the present matter is whether the plaintiffs have proffered enough for the court to make the threshold determination that they are similarly situated to a ...

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