United States District Court, E.D. Arkansas, Jonesboro Division
KRISTIE WEBER, individually and on behalf of others similarly situated PLAINTIFF
v.
FOWLER FOODS INC., CHRIS FOWLER, and SOUTHWEST ARKANSAS FOODS INC. DEFENDANTS
ORDER
James
M. Moody Jr. Judge.
Pending
is Plaintiff's Motion for Conditional Certification, For
Disclosure of Contact Information and to Send Notices. (ECF
No. 27). The Defendant has responded. For the reasons set
forth below, the Motion is granted in part and denied in
part.
Plaintiff
Kristie Weber brings this lawsuit on behalf of all former and
current hourly-paid employees and salaried Assistant Managers
of Defendants who Plaintiff alleges were denied a lawful
minimum wage and overtime compensation for hours worked in
excess of forty (40) hours per week as required under the
FLSA and AMWA. Plaintiff seeks conditional certification of
the collective action, disclosure of contact information for
putative class members, and leave to send a notice to all
others similarly situated giving them the option to opt in to
the case.
I.
Certification
In
determining whether this case is appropriate for a
court-authorized opt-in notice, the Plaintiff must establish
that she is "similarly situated” to putative class
members for purposes of' 216(b). This Court has adopted a
two-step approach to determine whether plaintiffs are
"similarly situated.”
The
first determination is made at the so-called "notice
stage.” At the notice stage, the
district court makes a decision, - usually based only on the
pleadings and any affidavits which have been
submitted-whether notice of the action should be given to
potential class members.
Because the Court has minimal evidence, this determination is
made using a fairly lenient standard, and typically results
in “conditional certification” of a
representative class. If the district court
“conditionally certifies” the class, putative
class members are given notice and the opportunity to
“opt-in.” The actions proceed as a representative
action throughout discovery.
The second determination is typically precipitated by a
motion for “decertification” by the defendant
usually filed after discovery is largely complete and the
matter is ready for trial. At this stage, the court has much
more information on which to base its decision, and makes a
factual determination on the similarly situated question. If
the claimants are similarly situated, the district court
allows the representative action to proceed to trial. If the
claimants are not similarly situated, the district court
decertifies the class, and the opt-in plaintiffs are
dismissed without prejudice. The class representatives-i.e.,
the original plaintiffs- proceed to trial on their individual
claims.
Collins v. Barney's Barn, Inc., No. 4:12CV00685
SWW, 2013 WL 1668984, *2 (E.D. Ark. April, 17, 2013) (quoting
Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14
(5th Cir. 1995)).
In
order to be similarly situated for purposes of' 216(b),
the Court may consider several factors including: 1) whether
plaintiffs hold the same job title; 2) whether they worked in
the same geographic location; 3) whether the alleged
violations occurred during the same period; 4) whether
plaintiffs were subjected to the same policies and practices;
and 5) the extent to which the acts constituting the alleged
violations are similar. Smith v. Frac Tech Servs.,
No. 4:09CV00679 JLH, 2009 WL 4251017 (E.D. Ark. Nov. 24,
2009).
Plaintiff
requests that the Court certify the following class pursuant
to 29 U.S.C. § 216(b):
All Fowler Foods and/or Southwest Arkansas Foods hourly-paid
employees and/or Assistant Managers at any time since August
13, 2015.
Plaintiff
claims that she and all putative class members performed the
same or similar job duties which inevitably required more
than forty (40) hours of work per week. Plaintiff claims that
as an hourly-paid employee she, and the other hourly-paid
members of the putative class, were required to clock out
once the store was closed to customers, but they were not
allowed to leave the store until it had been fully cleaned
and prepared for the next shift. As a result, Defendants
avoided paying for overtime wages by directing its hourly
employees to only report up to 40 hours per week on their
time sheets. Plaintiff claims that the salaried employees
were misclassified as exempt employees in order to avoid
paying them for overtime hours. She states that as an
Assistant ...