United States District Court, D. Maryland
K. BREDAR CHIEF JUDGE.
case was filed pursuant to the Fair Labor Standards Act of
1938 ("FLSA"), as amended, 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. It
claims a failure to pay overtime wages to Plaintiffs during
their employment as Vehicle Protection Specialists
("Specialists") working out of a call center in
Hunt Valley, Maryland. The case was brought against National
Auto Inspections, LLC, t/a Carchex
("NAI"), by Ian Chado, Nancy Nguyen, and William
Rush individually and on behalf of all similarly situated
employees. (Compl., ECF No. 1.)
NAI filed an answer (ECF No. 7), the Court held a scheduling
conference with Plaintiffs' and NAI's counsel, who
informed the undersigned that the parties consented to a
magistrate judge's conduct of all further proceedings.
The same day, the parties filed their consent forms (ECF Nos.
16, 17), and the case was duly reassigned to Magistrate Judge
David Copperthite (ECF No. 18). Already pending at the time
of reassignment was Plaintiffs' motion for conditional
certification of the case as a collective action under the
FLSA and to facilitate identification and notice to similarly
situated individuals. (ECF No. 15.) In its response to this
motion, NAI, while denying the allegations in the complaint,
recognized "that the Plaintiffs need only satisfy the
low threshold of conditional certification at this stage by
setting forth 'relatively modest evidence that they are
similarly situated, '" and it did not dispute that
the employees at issue were similarly situated. (NAI's
Resp. 2-3, ECF No. 23.) Shortly thereafter, Judge Copperthite
granted Plaintiffs' motion (ECF No. 25) and approved a
notice of collective action to be sent to similarly situated
individuals (ECF No. 29).
than thirty people filed "opt-in" notices and were
thereby added to the case as Plaintiffs. (ECF No. 30 et
seq.) Plaintiffs filed a motion to amend the complaint
(ECF No. 64), which was granted (ECF No. 78). The amended
complaint (ECF No. 79) included not only the three putative
class representatives but also all of the FLSA opt-in
Plaintiffs as named plaintiffs for a total number of
thirty-eight Plaintiffs listed in the amended complaint. In
addition, the amended complaint added Carchex, LLC
("Carchex"), and Jason Goldsmith as
same order granting the amended complaint, Judge Copperthite
also granted another motion by Plaintiffs (ECF No. 72) to
certify the case as a class action for the MWHL and MWPCL
claims under state law. (ECF Nos. 77, 78.) He defined the
certified class as the following:
All persons that work or worked for Defendant as a Vehicle
Protection Specialist between October 5, 2014 and the present
and who were not paid an overtime rate of "time and a
half their regular rate for all hours worked over forty (40)
in a workweek.
(Order, July 13, 2018, ECF No. 78.) He also appointed all
thirty-eight Plaintiffs named in the amended complaint plus
one of the additional opt-in Plaintiffs, Robert Woods, as
class representatives. (Id. 2.)
the amended complaint was docketed, NAI filed its answer (ECF
No. 80), Goldsmith filed his answer (ECF No. 97), and Carchex
filed a motion to dismiss for failure to state a claim (ECF
No. 89) and a motion to vacate all of Judge Copperthite's
orders, based on Carchex's lack of consent to a
magistrate judge conducting all proceedings in the case (ECF
No. 91). After Carchex's motions became ripe,
the case was reassigned to Chief Judge Bredar, who denied
both motions, but allowed Carchex to file a motion for
reconsideration of Judge Copperthite's orders granting
conditional certification of a collective action (ECF No. 25)
and granting class certification on the state law claims (ECF
No. 78). (Mem. Nov. 28, 2018, ECF No. 104; Order, Nov. 28,
2018, ECF No. 105.) The Court subsequently granted limited
discovery on the question of class certification. (ECF No.
112.) Following the limited discovery, Carchex, Goldsmith,
and NAI filed motions for reconsideration of the two
certification orders. (ECF Nos. 120, 121.) The motions have
been briefed (ECF Nos. 122, 123, 124) and are ripe for
decision. No. hearing is necessary. Local Rule 105.6 (D. Md.
2018). The motions will be granted in part and denied in
Conditional Certification of a Collective Action under
Title 29, United States Code, Section 216(b), it is stated,
"An action to recover the liability prescribed in the
preceding sentences [as to unpaid minimum wages or unpaid
overtime wages] 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."
Further, other employees who are similarly situated may
"opt in" to the suit by filing their statements of
consent with the court. Id. However, it is not
necessary for a suit to be certified as a collective action
before employees may "opt in" to it. Myers v.
Hertz Corp., 624 F.3d 537, 555 n.10 (2d Cir. 2010),
cited in Blake v. Broadway Servs., Inc., Civ. No.
CCB-18-086, 2018 WL 4374915, at *2 (D. Md. Sept. 13, 2018).
Certification of a collective action under the FLSA "is
merely the trial court's exercise of discretionary power
to notify potential class members." Blake, 2018
WL 4374915, at *2 (citing Hoffmann-La Roche Inc. v.
Sperling, 493 U.S. 165, 169 (1989)).
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). This case was at the first stage when Judge
Copperthite granted conditional certification. For
conditional certification, it is only necessary for the Court
to make 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." Syrja
v. Westat, Inc., 756 F.Supp.2d 682, 686 (D. Md. 2010)
(internal quotation marks omitted). The statute does not
define "similarly situated." But this Court has
opined that "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." Butler, 876 F.Supp.2d
at 566. "To satisfy their burden at this stage, the
plaintiffs must make 'a relatively modest factual
showing' that such a common policy, scheme, or plan
exists." Blake, 2018 WL 4374915, at *3 (quoting
Randolph v. PowerComm Const., Inc., 7 F.Supp.3d 561,
575 (D. Md. 2014)). '"Plaintiffs may rely on
affidavits or other means, such as declarations or deposition
testimony,' to satisfy this legal standard."
Veney v. John W. Clarke, Inc., Civ. No. JKB-13-2410,
2014 WL 4388541, at *1 (D. Md. Sept. 3, 2014) (quoting
Parker v. StoneMor GP, LLC, Civ. No. CCB-12-223,
2013 WL 3804842, at *1 (D. Md. July 19, 2013)). The
case's merits are not considered when a court rules upon
conditional certification of an FLSA collective action.
Blake, 2018 WL 4374915, at *3. Moreover, whether
certification of such a suit should be made regarding FLSA
claims is wholly independent of any determination as to
whether the case should be certified under Federal Rule of
Civil Procedure 23 for other claims in the case, and Rule 23
considerations are not relevant to collective action
certification. Emkey v. W.S.C., Inc., Civ. No.
RDB-18-1304, 2019 WL 1298478, at *2 (D. Md. Mar. 21, 2019).
(and Goldsmith and NAI, by adoption of Carchex's motion)
indicates it is asking this Court's reconsideration of
the conditional certification order "[f]or substantively
the same reasons" as Carchex is asking for
reconsideration of the class certification order.
(Carchex's Mot. Reconsideration 1, ECF No. 120.) Thus,
Carchex provides no separate argument on whether Judge
Copperthite correctly granted Plaintiffs' motion for
conditional certification of the case as a collective action
under the FLSA. Despite Defendants' failure to articulate
a focused argument on the point, the Court has nonetheless
reconsidered the question of conditional certification and
has concluded the ruling is correct. As previously noted,
whether the two rulings as to conditional certification of an
FLSA collective action and as to class certification on the
state law claims are correct is determined under different
potential plaintiffs in this case all worked in the same
position out of the same location. The depositions of eight
Plaintiffs, excerpts of which were provided to the Court as
exhibits, are consistent in establishing that all potential
plaintiffs were subject to the same complex piece-rate
compensation policy. The policy, submitted to the Court in
the form of attachments to depositions, was silent as to
overtime. The deposed Plaintiffs uniformly testified they
worked well beyond forty hours per week in every week of
their employment. Critically, a member of NAI's
management testified that overtime was based upon
scheduled hours, but scheduled hours were generally
restricted to a forty-five-hour work week, with one hour each
day for lunch. Thus, according to the evidence before the
Court, every potential plaintiff was subject to an unwritten
policy under which overtime was calculated using scheduled
hours, not actual hours. Further, Plaintiffs' testimony
indicated that NAI did not have a system for reliably
capturing all hours worked for the purpose of determining
overtime; the call records relied upon by Defendants only
established when Plaintiffs were logged into the Carchex
computer system and were on the telephone with prospective
customers. Plaintiffs' testimony provided evidence that
they were working at times other than when they were on the
telephone. They also provided evidence that Carchex, in fact,
has a system that tracks all of Plaintiffs' work time,
but that system is not used for computing overtime.
Plaintiffs established that they and all potential plaintiffs
"were victims of a common policy, scheme, or plan that
violated the law." See Butler, 876 F.Supp.2d at
566. Accordingly, they are appropriately regarded as
"similarly situated" and this case is properly
granted conditional certification as a collective action
under the FLSA. Having considered the matter anew, the
undersigned adopts Judge Copperthite's ruling (ECF No.
25) as the ruling of the Court. The parties shall advise the
Court if they object to having a new "opt-in"
period and, if so, the basis for any objection.
true focus of Defendants' motion for reconsideration is
the ruling in which the case was certified as a class action
in reference to the state law claims.
23, Federal Rules of Civil Procedure, provides the framework
for the Court's analysis on the question of class
certification. It ...