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Williams v. Angie's List, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

November 30, 2016

NICK WILLIAMS, et al., individually and on behalf of others similarly situated, Plaintiffs,
v.
ANGIE'S LIST, INC., Defendant.

          ENTRY ON PLAINTIFFS' MOTION FOR CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION

          Hon. William T. Lawrence, Judge United States District Court

         This cause is before the Court on the Plaintiffs' Motion for Conditional Certification of Collective Action and Court-Authorized Notice Pursuant to 29 U.S.C. § 216(b) (Dkt. No. 15). This motion is fully briefed, and the Court, being duly advised, DENIES the motion for the reasons, and to the extent, set forth below.

         I. BACKGROUND

         The Plaintiffs in this case are two current employees and several former employees of Angie's List, Inc. (“Angie's List”). They filed this lawsuit on behalf of themselves and other similarly situated individuals, alleging that Angie's List failed to compensate them for overtime hours worked as required by the Fair Labor Standards Act (“FLSA”). They further allege parallel claims under state laws governing overtime. Some of the Plaintiffs also seek under state law additional earned but unpaid compensation.

         The Plaintiffs seek conditional certification for a collective action of current and former employees who are or were in the following positions in the Sales Origination Department at any time between an undetermined point in 2013 and the present: Advertising Sales Consultant, Discovery Representative, Eligibility Representative, and Senior Solutions Consultant. Dkt. No. 46 at 17.[1] The Plaintiffs also seek to include in the collective action current and former employees who were Big Deal Representatives in the former Big Deal Department or who are or were E-Commerce Sales Representatives in the E-Commerce Department. Dkt. No. 46 at 17. For ease of reference, the Court refers to the collective employees in these six job titles as “Putative Class Members.” The Plaintiffs contend that they and the Putative Class Members were told to underreport or not report overtime hours worked, and thus were not paid for all hours worked.

         Angie's List objects to the appropriateness of the FLSA collective action and maintains that, in a number of ways, the Plaintiffs fail to show that they are similarly situated to the Putative Class Members. Angie's List also contends that the Plaintiffs have failed to show a uniform policy that required the Putative Class Members to underreport or not report overtime hours.

         II. FLSA COLLECTIVE ACTION

         The Fair Labor Standards Act (“FLSA”) provides that an action for unpaid overtime may be brought “by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). When an employee brings an FLSA claim on behalf of other similarly situated employees, it is termed a “collective action.” An individual can join the collective action only by consenting to become a participant. See 29 U.S.C. § 216(b) (“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.”); see also Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 771-72 (7th Cir. 2013) (comparing requirement that FLSA collective action plaintiffs must opt in to action with procedure of opting out of class actions governed by Fed.R.Civ.P. 23); Ervin v. OS Rest. Servs., Inc., 632 F.3d 971, 973 (7th Cir. 2011) (same).

         Because the FLSA does not specify how collective actions are to proceed, the management of these actions has been left to the discretion of the district courts. See Hoffmann-La Roche v. Sperling, 493 U.S. 165, 171-72 (1989). In this circuit, district courts generally follow a two-step inquiry when certifying collective actions.[2] In the first step, the Court must determine whether to conditionally certify an action as a collective action. “The sole consequence of conditional certification is the sending of court-approved written notice to employees, who in turn become parties to a collective action only by filing written consent with the court.” Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1530 (2013) (internal citations omitted).

         At the first step, the Court considers “whether the representative plaintiff has shown that she is similarly situated to the potential class plaintiffs.” Austin v. CUNA Mut. Ins. Soc'y, 232 F.R.D. 601, 605 (W.D. Wis. 2006). The FLSA does not define the term “similarly situated” or instruct judges when to exercise their discretion and authorize notice to potential plaintiffs. District courts in this circuit typically apply the following analysis: To be similarly situated at the first step, the Plaintiffs need make only a modest factual showing that they and potential plaintiffs were victims of a common policy or plan that violated the law. See, e.g., Bradley v. Arc of N.W. Ind., Inc., No. 2:14-cv-204, 2015 WL 2189284, at *2 (N.D. Ind. May 11, 2015) (citing Allen v. The Payday Loan Store of Ind., Inc., No. 2:13-cv-262, 2013 WL 6237852, at *1 (N.D. Ind. Dec. 3, 2013)); see also Camilotes v. Resurrection Health Care Corp., 286 F.R.D. 339, 345 (N.D. Ill. 2012). The Court analyzes the pleadings and any affidavits to determine whether that modest showing is made. Knox v. Jones Group, ---F.Supp.3d ----, 2016 WL 4943825, at *2 (S.D. Ind. Sept. 16, 2016).

         If the Court conditionally certifies a collective action and authorizes notice to potential participants, it proceeds to the second step in the certification process at the close of discovery and after the opt-in process is completed. Jirak v. Abbott Labs., Inc., 566 F.Supp.2d 845, 848 (N.D. Ill. 2008); Austin, 232 F.R.D. at 605. In that step, because discovery is completed and the Court has more information on which to base its decision, a defendant can request that the Court reevaluate whether the opt-in plaintiffs are similarly situated to the named representative plaintiffs. Jirak, 566 F.Supp.2d at 848 (citing Heckler v. DK Funding, 502 F.Supp.2d 777, 779 (N.D. Ill. 2007)).

         III. DISCUSSION

         This case is at the first step in the collective action certification inquiry. The Plaintiffs allege that, “Angie's List, through its sales trainers, sales managers, sales directors, and/or other executives and officers, routinely and regularly instructed sales representatives to under-report, or not report, hours worked in excess of forty hours per week.” Dkt. No. 16 at 3 (citing Dkt. No. 7 ¶ 43)[3]. They also allege that “Angie's List knew or should have known that its sales representatives regularly worked hours in excess of 40 hours per week, but did not pay them for all overtime hours worked.” Id. (citing Dkt. No. 7 ¶ 45). “Thus, Angie's List had a common policy of setting expectations for its sales representatives to work long hours, but to under-report those hours worked in order to avoid paying them overtime.” Id. at 9.

         To meet their burden, the Plaintiffs “need not provide conclusive support, but they must provide an affidavit, declaration, or other support beyond allegations in order to make a minimal showing of other similarly situated employees subjected to a common policy.” Molina v. First Line Solutions LLC, 566 F.Supp.2d 770, 786 (N.D. Ill. 2007). To this end, the Plaintiffs submitted two deposition excerpts and five affidavits.[4] The depositions describe certain job types as non-exempt from the FLSA's overtime provisions, supporting the Plaintiffs' allegation that Angie's List was required to pay overtime to those categories of employees. The ...


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