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Ferguson v. Arkansas Support Network, Inc.

United States District Court, W.D. Arkansas, Fayetteville Division

May 9, 2018

SHAY FERGUSON and JOSHUA COLEMAN, each individually and on behalf of all others similarly situated PLAINTIFFS
v.
ARKANSAS SUPPORT NETWORK, INC. DEFENDANT

          OPINION AND ORDER

          P.K. HOLMES, III CHIEF U.S. DISTRICT JUDGE

         Before the Court is Plaintiffs Shay Ferguson and Joshua Coleman's motion (Doc. 14) for conditional certification of collective action and brief in support (Doc. 15). Defendant Arkansas Support Network, Inc. (ASN) filed a response (Doc. 16), and Plaintiffs filed a reply (Doc. 19). The Court has considered the parties' filings and supporting documents and, for the following reasons, finds that Plaintiffs' motion should be GRANTED IN PART and DENIED IN PART.

         I. Background

         ASN is an Arkansas nonprofit corporation that provides a range of services to assist individuals who experience developmental disabilities throughout Arkansas. Ferguson worked for ASN as a direct support professional from 2006 until 2008 and again from 2011 until 2016. Coleman is currently employed by ASN as a direct support professional, a role he has been in since 2012. Direct support professionals, who have also been referred to as community support professionals, provide support and assistance to clients in the homes of those individuals. Plaintiffs contend that they were not paid a minimum wage or overtime compensation in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et. seq. Specifically, Plaintiffs contend that Defendant improperly classified direct support professionals as exempt from the FLSA under the companionship services exemption. See 29 U.S.C. § 213(a)(15) (the FLSA contains a companionship services exemption for “any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary)”).

         Plaintiffs seek conditional certification of their FLSA claim as a collective action pursuant to 29 U.S.C. § 216(b). In addition, Plaintiffs request that the Court order Defendant to disclose contact information for putative class members, authorize issuance of notice to putative class members, approve of their proposed notice and consent to join form (Doc. 14-1), and order Defendant to provide notice of this lawsuit to putative class members.

         II. Discussion

         1. Conditional Certification

         Under § 216(b) of the FLSA, a collective action for unpaid minimum wage or unpaid overtime compensation may be maintained against an employer 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). However, “[n]o 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 pending.” 29 U.S.C. § 216(b). Therefore, the FLSA “allows as class members only those who ‘opt-in.'” Schmidt v. Fuller Brush Co.¸ 527 F.2d 532, 536 (8th Cir. 1975).

         The FLSA gives the Court “the requisite procedural authority to manage the process of joining multiple parties in a manner that is orderly, sensible, and not otherwise contrary to statutory commands or the provisions of the Federal Rules of Civil Procedure.” Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989). “The court has a ‘responsibility to avoid the “stirring up” of litigation through unwarranted solicitation' of potential opt-in plaintiffs . . . but the district court should, ‘in appropriate cases, ' exercise its discretion to facilitate notice to potential plaintiffs.” Bouaphakeo v. Tyson Foods, Inc., 564 F.Supp.2d 870, 890 (N.D. Iowa 2008) (citations omitted).

         Neither § 216(b) nor the Eighth Circuit Court of Appeals has defined when “other employees [are] similarly situated” so that collective action certification and authorization of notice is appropriate. Davenport v. Charter Commc'ns., LLC, 2015 WL 164001, *4 (E.D. Mo. Jan. 13, 2015). However, most courts within the Eighth Circuit, including this Court, most frequently use a two-stage approach for collective action certification under § 216(b). See e.g., Resendiz-Ramirez v. P & H Forestry, L.L.C., 515 F.Supp.2d 937, 941 (W.D. Ark. 2007) (“The Court is convinced that the more prudent approach is to use the two-stage certification analysis that is used by a majority of courts, including a majority of district courts in the Eighth Circuit.”). Nothing in Eighth Circuit or United States Supreme Court precedent requires district courts to utilize this approach; rather, “[t]he decision to create an opt-in class under § 216(b), like the decision on class certification under Rule 23, remains soundly within the discretion of the district court.” Bouaphakeo, 564 F.Supp.2d at 891.

         The two-stage approach to certifying a collective action is divided into (1) the notice stage and (2) the opt-in or merits stage. Resendiz-Ramirez, 515 F.Supp.2d at 940-41.

         At the notice stage, plaintiffs face a lenient burden to show that they are “similarly situated” to the putative collective action class. Id. at 941. To meet this lenient burden, plaintiffs must make a modest factual showing that plaintiffs and putative class members were victims of a common decision, policy, or plan of the employer that affected all class members in a similar manner. Id. “Although credibility determinations and findings of fact are not required at this stage, some identifiable facts or legal nexus must bind the claims so that hearing the cases together promotes judicial efficiency.” Jost v. Commonwealth Land Title Ins. Co., 2009 WL 211943, *2 (E.D. Mo. Jan. 27, 2009) (citation omitted). “During the notice stage, the court makes a decision-usually based only on the pleadings and affidavits which have been submitted-whether notice should be given to potential class members.” Resendiz-Ramirez, 515 F.Supp.2d at 940. “If the court allows for notification, the court typically creates conditional certification of a representative class and allows notice to be sent to the potential opt-in plaintiffs.” Id.

         At the opt-in or merits stage, typically precipitated by a motion to decertify by the defendant after discovery is largely complete, plaintiffs seeking to maintain the collective action bear a higher burden to show that they are similarly situated and that the case should continue to trial as a collective action. Kautsch v. Premier Commc'ns, 2008 WL 294271, *1 (W.D. Mo. Jan. 31, 2008). Still, plaintiffs need not show that they are identically situated. Fast v. Applebee's Int'l., Inc., 243 F.R.D. 360, 363 (W.D. Mo. 2007). Instead, the Court considers the following factors to determine if plaintiffs are indeed similarly situated: (1) employment and factual settings of plaintiffs; (2) various defenses available to defendants; and (3) considerations of fairness, procedure, and manageability. Bouaphakeo, 564 F.Supp.2d at 892. “The district court must assess these factors in light of ‘the fundamental purpose of 29 U.S.C. § 216(b): (1) to lower costs to the plaintiffs through the pooling of resources; and (2) to limit the controversy to one proceeding which efficiently resolves common issues of law and fact that arose from the same alleged activity.'” Id. (citations omitted).

         Plaintiffs request that the Court conditionally certify and approve notice to all potential ...


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