United States District Court, E.D. Arkansas, Western Division
Kristine G. Baker, United States District Judge.
the Court is plaintiff Jacob McChesney's motion for
conditional certification of collective action, for
disclosure of potential opt-in plaintiffs' contact
information, and to send court-approved notice (Dkt. No. 11).
Mr. McChesney brings claims against defendant Holtger Bros.,
Inc. (“Holtger”) pursuant to the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 216(b),
and the Arkansas Minimum Wage Act (“AMWA”), Ark.
Code Ann. §§ 11-4-201 et seq. Holtger
initially filed a response in opposition to Mr.
McChesney's motion for conditional certification (Dkt.
No. 14). Holtger then filed a motion for leave to file
supplemental response to plaintiff's motion for
conditional certification and to hold motion for conditional
certification in abeyance (Dkt. No. 16). The Court grants
Holtger's motion for leave to file supplemental response
(Dkt. No. 16). The Court, in ruling on the pending motions,
considered the supplemental response Holtger filed (Dkt. No.
19). Also before the Court is Mr. McChesney's motion to
approve equitable tolling (Dkt. No. 17), to which Holtger
responded in opposition (Dkt. No. 20). For the reasons that
follow, the Court grants, in part, and denies, in part, Mr.
McChesney's motion for conditional certification of
collective action, for disclosure of potential opt-in
plaintiffs' contact information, and to send
court-approved notice (Dkt. No. 11). The Court grants Mr.
McChesney's motion for equitable tolling (Dkt. No. 17).
McChesney is a former hourly paid employee of Holtger (Dkt.
No. 1, ¶¶ 8, 18). Mr. McChesney alleges that
Holtger operates a “yard” in Pulaski County out
of which he was based during his employment with Holtger
(Id., ¶ 12). Holtger is a utility contractor
licensed or performing work in Wisconsin, Michigan, Arkansas,
Louisiana, Mississippi, Texas, Illinois, Iowa, Indiana,
Florida, Massachusetts, Connecticut, Tennessee, Georgia,
Arizona, Alabama, and New Mexico (Dkt. No. 19, at 2). Holtger
maintains that Mr. McChesney worked for Holtger in Arkansas
from August 2017 to July 2018, when he was terminated
(Id.). Further, Holtger maintains that Mr. McChesney
never worked for Holtger outside of Arkansas during his
employment (Id., at 11).
McChesney alleges claims under the FLSA and the AMWA.
Specifically, Mr. McChesney contends that, between December
13, 2014, and December 13, 2017, Holtger failed to pay Mr.
McChesney and other employees “their regular rate for
all hours worked under 40 hours per week and overtime
compensation in the amount of one and one-half times their
regular rate of pay for all hours worked in excess of 40 in a
week.” (Dkt. No. 1, ¶¶ 21-23). Mr. McChesney
seeks conditional class certification of a collective action
for his FLSA claims for “[a]ll current and former
hourly-paid field workers employed by Defendant Holtger
Bros., Inc. at any time since December 13, 2014.” (Dkt.
No. 11, ¶ 2). Mr. McChesney has not moved for class
certification on his AMWA claims.
FLSA Conditional Certification
An action to recover the liability prescribed . . . may be
maintained against any employer . . . in any Federal or State
court of competent jurisdiction by any one or more employees
for and in behalf of himself or themselves and other
employees similarly situated. 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.
29 U.S.C. § 216(b).
district courts in the Eighth Circuit utilize a two-step
approach in collective action cases. At the notice stage, the
Court must determine, based on the pleadings and affidavits,
whether notice should be given to potential class members.
The key issue is whether the members of the proposed class
are similarly situated. If the Court allows notification,
then a representative class is conditionally certified, and
Mr. McChesney will send notice to the putative opt-in
plaintiffs. At the second stage, the Court determines whether
to decertify the class once discovery is largely complete.
Smith v. Frac Tech Services, Ltd., No. 4:09-cv-679,
2009 WL 4251017, at *2 (E.D. Ark. Nov. 24, 2009) (citation
omitted). This Court has previously adopted this approach.
See Watson v. Surf-Frac Wellhead Equip. Co., No.
4:11-cv-843, 2012 WL 5185869, at *1 (E.D. Ark. Oct. 18,
2012); Cruthis v. Vision's, No. 4:12-cv-244,
2013 WL 4028523, at *1-2 (E.D. Ark. Aug. 7, 2013). Although
it appears from Holtger's supplemental response that the
parties have conducted some discovery, neither party contends
that discovery conducted to date has been substantial in
scope or that discovery is largely complete. As such, the
Court determines it does not have sufficient information to
skip the initial “notice” step of FLSA
certification and determines that the more lenient standard
is appropriate at this conditional certification stage.
See Fast v. Applebee's Int'l, Inc., 243
F.R.D. 360, 363 (W.D. Mo. 2007).
establish that conditional certification is appropriate, the
plaintiff must provide some factual basis from which the
court can determine if similarly situated potential
plaintiffs exist.'” Tegtmeier v. PJ Iowa,
L.C., 208 F.Supp.3d 1012, 1018 (S.D. Iowa) (alteration
in original) (quoting Robinson v. Tyson Foods, Inc.,
254 F.R.D. 97, 99 (S.D. Iowa 2008)). Mr. McChesney's
burden at the notice stage is lenient and may be met by
making a “modest factual showing, ” typically by
the submission of affidavits, that he and the putative class
were victims of a common decision, policy, or plan of the
employer that affected all class members in a similar
fashion. Resendiz-Ramirez v. P & H Forestry,
LLC, 515 F.Supp.2d 937, 941 (W.D. Ark. 2007) (citing
Thiessen v. General Electric Capital Corp., 267 F.3d
1095, 1106-08 (10th Cir. 2001)). However, while this is a
“lenient standard, . . . ‘more than mere
allegations' are required.” Tegtmeier, 208
F.Supp.3d at 1018 (quoting Robinson, 254 F.R.D. at
district courts will make the determination of whether to
conditionally certify a class based solely on the affidavits
presented by the plaintiffs.” Huang v. Gateway
Hotel Holdings, 248 F.R.D. 225, 227 (E.D. Mo. 2008)
(citation omitted). The Court can consider a variety of
non-exclusive factors in determining whether employees are
similarly situated. Such factors include: (1) whether the
employees held 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 employees were subjected to the same policies and
practices and, if so, whether the 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. Stone v. First Union
Corp., 203 F.R.D. 532, 542-43 (S.D. Fla. 2001) (citing
Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d
1208, 1219 (11th Cir. 2001); Grayson v. K Mart
Corp., 79 F.3d 1086, 1090, 1097-99 (11th Cir. 1996)).
“The Court does not need to determine whether class
members are actually similarly situated until the
‘merits stage' of the litigation, when defendants
typically move to decertify the class.” Tinsley v.
Covenant Care Servs., LLC, No. 1:14-cv-00026-ACL, 2015
WL 1433988, at *1 (E.D. Mo. Mar. 27, 2015) (emphasis in
original) (citing Littlefield v. Dealer Warranty Servs.,
LLC, 679 F.Supp.2d 1014, 1016-17 (E.D. Mo. 2010)).
his burden, Mr. McChesney presents his sworn affidavit, in
which he avers that
[f]ield workers, such as myself, arrive at Defendant's
yard in Pulaski County around 6:30 in the morning, where we
load up any items such as tools or materials we will need to
perform our work on the work site each day. From the yard, we
travel together in crews to the work sites in vehicles owned
by Defendant. ...