United States District Court, W.D. Arkansas, Fayetteville Division
SHAY FERGUSON and JOSHUA COLEMAN, each individually and on behalf of all others similarly situated PLAINTIFFS
ARKANSAS SUPPORT NETWORK, INC. DEFENDANT
OPINION AND ORDER
HOLMES, III CHIEF U.S. DISTRICT JUDGE
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.
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)”).
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.
§ 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.
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).
§ 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
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
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.
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).
request that the Court conditionally certify and approve
notice to all potential ...