United States District Court, E.D. Arkansas, Western Division
CRAIG COATES; MOLLY WARRINGTON; and EDWIN SMITH, individually and on behalf of all others similarly situated PLAINTIFFS
DASSAULT FALCON JET CORPORATION DEFENDANT
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE
a collective action brought by former employees of Dassault
Falcon Jet Corporation alleging violations of the Fair Labor
Standards Act, 29 U.S.C. § 201, et seq., and
the Arkansas Minimum Wage Act, Ark. Code Ann. §
11-4-201, et. seq. The plaintiffs-Craig Coates,
Molly Warrington, and Edwin Smith-allege that Falcon Jet
wrongfully classified them as exempt from the FLSA and AMWA
overtime requirements. Though they worked more than forty
hours per week, they were not paid a higher rate for those
overtime hours. They have filed a motion for conditional
class certification and court-authorized notice. For the
following reasons, the motion is granted.
FLSA authorizes “similarly situated” employees to
proceed collectively to recover damages for violations of the
FLSA's overtime provisions. 29 U.S.C. § 216(b). The
FLSA does not expressly define “similarly
situated.” Although the Eighth Circuit has not
addressed the issue, this Court and others within the Eighth
Circuit have applied the two-step approach set out in
Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987)
to determine whether class certification is proper. See
Maclin v. Montgomery and Sons Const., Inc., No: 4:12CV5,
2012 WL 5818163 at *1 (E.D. Ark. Nov. 15, 2012) (applying the
two-step approach); In re Pilgrim's Pride, No.
1:07CV1832, 2008 WL 4877239, at *2 (W.D. Ark. Mar. 13, 2008)
(citing to federal courts that follow the two-step approach
and adopting it); Davis v. NovaStar Mortgage, Inc.,
408 F.Supp.2d 811, 815 (W.D. Mo. 2005) (applying the two-step
approach); Kalish v. High Tech Inst., Inc., No. Civ.
041440, 2005 WL 1073645, at *1 (D. Minn. Apr. 22, 2005)
(applying the two-step approach); McQuay v. Am. Int'l
Group, No. 4:01CV00661, 2002 WL 31475212, at *2 (E.D.
Ark. Oct. 25, 2002) (noting that “a majority of courts
have adopted a two-step process”). “This approach
provides for a two-step determination as to whether class
certification is proper.” Davis, 408 F.Supp.2d
at 815. Generally, the plaintiffs move for conditional
certification at an early stage in the litigation, and a
class is conditionally certified for notice purposes.
Id. Then, the defendant is allowed the opportunity
to move for de-certification at the close of discovery.
Jet argues that the Court should not apply the two-step
procedure because it is contrary to the plain text of section
216(b) and the relevant legislative history does not indicate
that Congress intended for courts to conditionally certify
collective actions. Falcon Jet says that employers are unduly
burdened by the two-step process because they are required to
move for decertification after conducting discovery.
216(b) does not specify the procedure courts should follow to
certify collective actions. See Davenport v. Charter
Commc'ns, LLC, 4:12CV00007 AGF, 2017 WL 878029 at *8
(E.D. Mo. March 6, 2017). It simply provides that one or more
employees, on behalf of themselves and other employees
similarly situated, may bring an action to recover unpaid
minimum wages or unpaid overtime compensation and that
employee is a party unless he gives his written consent and
that consent is filed in the court in which the action has
been brought. 29 U.S.C. § 216(b).
Falcon Jet's argument ignores one of the purposes of the
FLSA collective action, which is to reduce the burden on
plaintiffs through the pooling of resources. See
Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 170,
110 S.Ct. 482, 107 L.Ed.2d 480 (1989) (noting a collective
action affords plaintiffs the “advantage of lower
individual costs to vindicate rights by the pooling of
resources”). The two-step procedure with a lenient
standard at the initial stage recognizes that the statute of
limitations for opt-in plaintiffs continues to run until they
opt-in. If the Court imposed a more stringent standard, like
the more traditional Rule 23-style analysis, the parties
would need to conduct discovery before the certification
issue became ripe and during that time the statute of
limitations would continue to run, working to the detriment
of employees who were not paid overtime. Judicial economy is
another concern. The Third Circuit explained: “A
district court's early intervention in the preparation
and distribution of notice to potential participants serves
legitimate purposes, including avoidance of a multiplicity of
duplicative suits and establishing cutoff dates to expedite
disposition of the action.” Halle v. West Penn
Allegheny Health Sys., Inc., 842 F.3d 215, 224 (3rd Cir.
2016). This Court, as it has done in the past, will follow
the majority of courts and continue to apply a two-step
approach to certification. See Myers v. Hertz Corp.,
624 F.3d 537, 554-55 (2d Cir. 2010); Morgan v. Family
Dollar Stores, Inc., 551 F.3d 1233, 1259-60 (11th Cir.
2008); Comer v. Wal-Mart Stores, Inc., 454 F.3d 544,
546 (6th Cir. 2006).
first stage, or “notice stage, ” courts apply a
lenient standard to determine whether persons similarly
situated to the named plaintiffs exist and should receive
notice. Chin v. Tile Shop, LLC, 57 F.Supp.3d 1075,
1082 (D. Minn. 2014). The plaintiffs bear the burden
of proof at this stage, and they “can meet this burden
by making a modest factual showing sufficient to demonstrate
that they and potential plaintiffs together were victims of a
common policy or plan that violated the law.”
Kautsch v. Premier Commc'ns, 504 F.Supp.2d 685,
689 (W.D. Mo. 2007) (quoting Realite v. Ark Rests.
Corp., 7 F.Supp.2d 303, 306 (S.D.N.Y. 1998)). The
plaintiffs can satisfy their burden through the use of
affidavits, supported by admissible evidence. Jost v.
Commonwealth Land Title Ins. Co., No.
4:08CV734, 2009 WL 211943, at *2-3 (E.D. Mo. Jan. 27, 2009).
“The plaintiffs may not meet this burden through
unsupported assertions of additional plaintiffs and
widespread FLSA violations.” Littlefield v. Dealer
Warranty Servs., LLC, 679 F.Supp.2d 1014, 1017 (E.D. Mo.
2010). However, the Court “does not make any
credibility determinations or findings of fact with respect
to contrary evidence presented by the parties.”
Chin, 57 F.Supp.3d at 1083.
plaintiffs propose three classes for conditional
(1) All Team Leaders (internal job code TEAM LDR and similar
positions) employed by Defendants since June 6, 2014.
(2) All Office Personnel Employees (internal job codes
ANALYST, ASSOC ANALYST, SPEC and similar positions) employed
by Defendants since June 6, 2014.
(3) All Liaisons (internal job codes LIAISON PRODUCTION,
COORD-SHOP FLOOR and similar positions) employed by
Defendants since June 6, 2014.
named plaintiffs have each submitted an affidavit to show
that they and employees similarly situated to them were