United States District Court, E.D. Arkansas, Jonesboro Division
Jeffrey Olsen's motion for conditional certification
[Doc. No. 7] is granted in part and denied in part.
brings claims against the defendants for overtime
compensation violations under the Fair Labor Standards Act
(FLSA) and the Arkansas Minimum Wage Act (AMWA). He seeks
conditional certification of a collective action for a class
of similarly situated individuals.
who want to sue on behalf of a similarly situated class under
the FLSA must utilize the opt-in mechanism provided in 29
U.S.C. section 216(b) instead of the opt-out mechanism
provided in Federal Rule of Civil Procedure 23. Butcher
v. Delta Mem'l Hosp., No. 5:12CV00241 SWW, 2013 WL
1668998, at *1 (E.D. Ark. Apr. 17, 2013). This is known as a
collective action, distinguishing it from a Rule 23 class
action. Teramura v. Walgreen Co., No. CV 12 5244,
2013 WL 12171862, at *1 (W.D. Ark. Mar. 7, 2013). A district
court may exercise discretion in appropriate cases to
authorize the sending of notice to potential members in a
collective action so long as it avoids communicating in a way
that endorses the merits of the action. Hoffmann La Roche
Inc. v. Sperling, 493 U.S. 165, 169 (1989); Collins
v. Barney's Barn, Inc., No. 4:12CV00685 SWW, 2013 WL
1668984, at *1 (E.D. Ark. Apr. 17, 2013).
district courts in the Eighth Circuit use a two-step approach
in a collective action to determine whether certification of
a similarly situated class is proper. Cruthis v.
Vision's, No. 4:12CV244 KGB, 2013 WL 4028523, at *1
(E.D. Ark. Aug. 7, 2013). First, at the notice stage, the
district court determines whether notice of the action should
be given to potential plaintiffs. Collins, 2013 WL
1668984 at *2. This determination is usually based on
pleadings and affidavits. Id. Because the court has
minimal evidence at this stage, the standard is fairly
lenient and typically results in conditional certification of
a representative class. Id. Potential plaintiffs are
then given notice and an opportunity to opt in, and the
action proceeds as a representative action throughout
discovery. Id. At the second stage, when discovery
is largely complete, the defendant may move for
decertification. Id. At this stage, a factual
determination of whether the class members are similarly
situated can be made. Id. If the class members are
not similarly situated, the class can be decertified, the
opt-in members can be dismissed, and the class
representatives can proceed to trial on their individual
determining whether an opt-in class is appropriate for
conditional certification and court-authorized notice, the
main question is not whether there has been a violation of
the law, but whether plaintiffs have established whether
similarly situated members of a potential class exist.
Butcher, 2013 WL 1668998 at *1-3; In re
Pilgrim's Pride Fair Labor Standards Act Litig., No.
MDL 1:07 CV 1832, 2008 WL 4877239, at *3 (W.D. Ark. Mar. 13,
2008). The FLSA does not expressly define “similarly
situated, ” Madden v. Lumber One Home Ctr. of
Stuggart Inc., No. 4:10CV01162 JLH, 2010 WL 4974971, at
*4 (E.D. Ark. Dec. 2, 2010), but factors often considered
include (1) whether the plaintiffs hold the same job title;
(2) whether they worked in the same geographic location; (3)
whether the alleged violations occurred during the same time
period; (4) whether the plaintiffs were subjected to the same
policies and practices, and whether these policies and
practices were established in the same manner and by the same
decision maker; and (5) the extent to which the acts
constituting the alleged violations are similar.
Cruthis, 2013 WL 4028523 at *2.
seeks conditional certification of a class of “[a]ll
jailers for Defendant at any time since July 17, 2015.”
Mot. Conditional Certification ¶ 3, Doc. No. 7.
Defendant Clay County, Arkansas (“Clay County”)
opposes certification because it disputes whether Olsen is
similarly situated with members of the proposed class.
Specifically, Clay County argues that many potential class
members have already released their claims against Clay
County and that, according to an investigation by the
Department of Labor, Olsen has been properly compensated
contrary to his assertion otherwise.
notice stage, however, the evidence submitted by Clay County
need not be considered because it does not bear on whether
Olsen has made a “modest factual showing”
entitling him to conditional certification. Becerra v. IM
LLC-I, No. CV 14-2671 (ADS) (ARL), 2015 WL 1954478, at
*4 (E.D.N.Y. 2015). Courts are not to resolve contradictory
evidence presented by the parties or make any credibility
determinations at this stage. In re Pilgrim's Pride
Fair Labor Standards Act Litig, 2008 WL 4877239 at *3.
Rather, the relevant inquiry is whether Olsen's pleadings
and affidavits demonstrate that he is “similarly
situated” to the potential collective action members.
Id. Because Clay County's exhibits essentially
refute Olsen's declaration, their arguments invite an
improper resolution of contradictory evidence. Clay County
will have an opportunity to move for decertification at a
later stage, and their evidence may be properly considered at
on Olsen's motion and his declaration, the proposed
collective action members are, like Olsen, jailors for Clay
County who were allegedly not paid overtime wages.
See Mot. Conditional Certification Ex. 7. At this
stage, he appears similarly situated to the proposed
collective action members. Accordingly, conditional
certification is granted.
motion, as it pertains to notice to potential opt-in
plaintiffs, is granted in part and denied in part. His
request to send notice by email and text messages and to send
reminder notices by email and text messages is denied without
prejudice to avoid redundant notice and any conduct that
could be interpreted as an endorsement of the lawsuit.
See Cruthis, 2013 WL 4028523 at *8;
Teramura, 2013 WL 12171862 at *4; Knispel v.
Chrysler Grp. LLC, No. 11-11886, 2012 WL 553722, at *8
(E.D. Mich. Feb. 21, 2012). Providing notice to possible
opt-in plaintiffs through U.S. mail via letter or postcard is
sufficient, and Olsen may send one written notice and one
follow-up written notice. Including a copy of the complaint
and answer in the notice packet is acceptable. Olsen's
request that Clay County be required to post the notice in
the same areas in which it is required to post
government-required notices is granted. See Putnam v.
Galaxy 1 Mktg., Inc., 276 F.R.D. 264, 277-78 (S.D. Iowa
2011) (noting that “courts routinely approve requests
to post notice in common areas or on employee bulletin
boards, even if there is an alternative forum of
notice.”). His proposed written notice and consent
forms are acceptable, see Mot. Conditional
Certification Exs. 1, 2, 5, subject to several alterations.
First, the statement “If the case is not settled
between the parties, a trial will be held at the United
States District Court of the Eastern District of Arkansas in
Jonesboro, Arkansas” in the paragraph titled “(3)
DESCRIPTION OF THE LAWSUIT” shall be changed to read
“If the case is not dismissed, settled, or decided on
the merits prior to the trial date, a trial will be held at
the United States District Court for the Eastern District of
Arkansas in Jonesboro, Arkansas.” Second, the
statements “It is important to understand that you may
be entitled to recovery just because you were employed by the
County as a jailer at some time since July 17, 2015"
shall be changed to read “It is important to understand
that you may not be entitled to recovery just
because you were employed by the County as a jailer at some
time since July 17, 2015.”
Clay County is ordered to produce the full name, dates of
employment, and last known home address of each putative
collective member in a usable electronic format. This
information shall be delivered to Olsen's counsel within
fourteen (14) days of the entry of this order, with the
understanding that Olsen's counsel is to treat this
information as confidential and is not to disclose it to
third parties. Olsen shall have ninety (90) days from the
date Clay County delivers the ...