United States District Court, N.D. Indiana
MATTHEW HARRIS, individually and on behalf of all similarly situated individuals, Plaintiff,
RELIABLE REPORTS INC., Defendant.
OPINION AND ORDER
JOSEPH S. VAN BOKKELEN, District Judge.
This matter is before the Court on Plaintiff Matthew Harris's motion for conditional class certification, court-supervised notice to potential plaintiffs, and expedited discovery in a proposed collective action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219. Defendant has moved for leave to file a sur-reply to Plaintiff's motion.
Harris is a former field reporting specialist ("field rep") for Defendant Reliable Reports Inc. who claims that Reliable has failed to pay him minimum wages and overtime as required by the FLSA. Reliable is in the business of property and casualty insurance inspection and reporting. As a field rep, Harris worked from a home office in Fort Wayne, Indiana, and his car, traveling to inspection sites in Indiana, Ohio, Michigan, Iowa, and West Virginia. His duties included downloading information on the properties he was to inspect from Reliable's computer network, calling to set up appointments, preparing route maps, driving from his home to the inspections, performing the inspections, returning home or to a hotel, logging back into the computer network to enter his hours worked and miles traveled for the day, and completing online inspection reports for the properties he inspected.
When Reliable's Field reps are in training they are paid an hourly rate of $13.32. Once their training is complete, they are paid according to a piece rate method of compensation. They receive various payments for different types of inspections. Their total compensation for the week is divided by the total number of hours they report as hours worked in that week. If this hourly rate falls below the required minimum wage, employees are paid a minimum wage supplement.
Harris claims that during the two years he worked for Reliable he consistently worked sixty to sixty-five hours a week but that his supervisors repeatedly directed him to reduce the time he reported. He asserts that as a consequence he was not paid overtime to which he was entitled. He further claims that his time spent driving from his home to his first inspection of the day and driving home from his last inspection of the day should be included in his hours worked. He also claims that Reliable's mileage reimbursement policy and failure to reimburse field reps for certain equipment essential to their work reduces their wages below minimum wage.
In his declaration in support of his motion, Harris states:
Based on my experience working at Reliable, I believe other Field Reps performed the same or similar job duties and worked numerous hours in excess of 40 hours a week without receiving a minimum wage and overtime compensation. From my experiences, I know that Reliable's Field Reps were subjected to the same pay practices and procedures and that all of us lost wages because we were not paid properly. I believe that, if given the opportunity, many of theses individuals would participate in a lawsuit to recover unpaid minimum wages and overtime compensation. (DE 6 at 34.)
Harris offers the declaration of Clark Trotter to further support his motion for conditional class certification. Trotter is a would-be opt-in Plaintiff who also worked as a field rep for Reliable. Trotter's travels for Reliable took him from his home in Des Moines, Iowa, to South Dakota, Nebraska, Indiana, Minnesota, Wisconsin, Missouri, Georgia, and Mississippi. His description of his duties is virtually identical to Harris's. He also alleges that he performed off-the-clock work and was not reimbursed for mandatory job-related expenses. Trotter's declaration also includes a statement as to his belief that other field reps are subject to the same pay practices and were not properly paid.
Harris asks the Court to conditionally certify a collective action consisting of several hundred current and former Reliable field reps located around the country.
B. Legal Standard
Under 29 U.S.C. § 216(b), a plaintiff may bring an action to recover unpaid wages and overtime on behalf of himself and other similarly situated employees, but no employee may be a party to such an action unless he opts in by filing a written consent with the court. Such actions are known as collective actions. See Harkins v. Riverboat Services, Inc., 385 F.3d 1099, 1101 (7th Cir. 2004). While § 216(b) does not explicitly provide for conditional certification and court-ordered notice of a collective action, district courts have the discretion to implement § 216(b) by facilitating notice to potential plaintiffs. Hoffmann-LaRoche, Inc. v. Sperling, 493 U.S. 165, 169-70 (1989).
Neither the Supreme Court nor the Seventh Circuit has provided guidance as to how a district court is to determine that potential opt-in plaintiffs are similarly situated such that they should receive notice and the opportunity to join in a collective action. District courts throughout this Circuit and around the country have adopted a two-step procedure for managing proposed collective actions. At the first step, a plaintiff must make "a modest factual showing" that he and potential class members were "victims of a common policy or plan that violated the law." Kelly v. Bluegreen Corp., 256 F.R.D. 626, 629-30 (W.D.Wis. 2009). If the plaintiff makes this showing, the district court grants conditional certification and notice may then be sent to potential class members. See Boyd v. Alutiiq Global Solutions, LLC, No. 11-CV-753, 2011 WL 3511085 at *3 (N.D. Ill. August 8, 2011). The second step takes place after the ...