United States District Court, D. Maryland
HENRY L. BLAKE JR., et al.,
BROADWAY SERVICES, INC.
Catherine C. Blake, United States District Judge.
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.
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). 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).
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
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).
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) 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).
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
(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).
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).
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.
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