United States District Court, S.D. Indiana, Indianapolis Division
NICK WILLIAMS, et al., individually and on behalf of others similarly situated, Plaintiffs,
ANGIE'S LIST, INC., Defendant.
ENTRY ON PLAINTIFFS' MOTION FOR CONDITIONAL
CERTIFICATION OF COLLECTIVE ACTION
William T. Lawrence, Judge United States District Court
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.
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.
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. 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.
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.
FLSA COLLECTIVE ACTION
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).
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. 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).
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).
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.
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). 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.
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. 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 ...