United States District Court, W.D. Arkansas, Fayetteville Division
SEAN HARRISON, Individually and on Behalf of Others Similarly Situated PLAINTIFF
HOG TAXI, LLC; MELISSA REYNOLDS; AND TIMOTHY REYNOLDS DEFENDANTS
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE.
the Court are Plaintiffs Motion for Conditional Certification
of Collective Action, for Disclosure of Contact Information,
and to Send Notices (Doc. 35) and Brief in Support (Doc. 36);
Defendants' Response in Opposition (Doc. 37); and
Plaintiffs Reply (Doc. 40). As explained in this Order,
Plaintiffs Motion (Doc. 35) is GRANTED.
Sean Harrison, on behalf of himself and others similarly
situated, moves the Court for conditional certification of a
collective action pursuant to the Fair Labor Standards Act
("FLSA"), 29 U.S.C. § 216(b). The FLSA is a
federal statute governing minimum wages, maximum hours
worked, and overtime compensation. The statute allows an
action to be brought "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). This type
of lawsuit requires that each potential plaintiff "opt
in," or "give his consent in writing to become such
a party" to a collective claim for unpaid wages.
Harrison is a former driver for Hog Taxi, LLC, a taxi company
in northwest Arkansas. Mr. Harrison alleges that Defendants
violated the FLSA by failing to pay the drivers minimum wage
for up to forty hours of work per week. Mr. Harrison asks the
Court to conditionally certify an FLSA class of "all
taxi drivers who were employed by Defendants at any time
since February 7, 2016." (Doc. 35-1).
Motion, Mr. Harrison argues that Defendants' practice of
paying a commission per ride without regard to the number of
hours worked and taking deductions for phone, dispatch, and
leasing fees resulted in a failure to pay the minimum wage.
Mr. Harrison submits that all the taxi drivers working for
Defendants are paid according to the same policy.
do not dispute Mr. Harrison's description of the
compensation policy but assert that Mr. Harrison has not
established that practice to be unlawful. Defendants also
raise the objection that Mr. Harrison fails to show that
other plaintiffs desire to opt in to the litigation should
conditional certification be granted. Finally, in raising
various objections to the proposed form of notice, Defendants
object to the inclusion in the conditional class of drivers
who own their own cars. They also object to Plaintiffs
characterization of the class as drivers who were
"employed by" Defendants. Id. Defendants
note that the employment status of the taxi drivers is
disputed and argue that the definition of the class should
therefore be revised to use more neutral language.
conditional certification is granted, Mr. Harrison wishes to
send out notice to potential opt-in plaintiffs by U.S. Mail,
followed by a reminder postcard after 30 days. Mr. Harrison
also wishes to send notification by email and allow opt-in
plaintiffs to submit their consent online via
make several objections to Mr. Harrison's proposed
notice. A few of these are accepted by Mr. Harrison in
Plaintiffs Reply in Support of Plaintiff's Motion for
Conditional Certification (Doc. 40). Mr. Harrison accepts the
proposal that the scheduled trial date be included in the
description of the lawsuit. If email notification is granted
by the Court, Mr. Harrison also accepts Defendants'
proposed changes to the electronic notice and consent emails.
objections remain unresolved. Defendants object to language
in paragraph 3 of the proposed Notice (Doc. 35-1) referring
to the potential for the case to be settled. Defendants
further object to language in paragraph 6 of the proposed
Notice informing potential opt-in plaintiffs that they
"will not be required to pay attorney's fees
directly." Id. Defendants argue that this
language is misleading because the Court has the discretion
under Federal Rule of Civil Procedure 54(d)(1) to award costs
to Defendants if they are the prevailing party and because
Plaintiff's counsel can seek a percentage of the fund
following a settlement, which could result in opt-in
plaintiffs not being made completely whole.
Eighth Circuit has not yet announced standards that district
courts must use in evaluating collective actions pursuant to
the FLSA. Resendiz-Ramirez v. P&H Forestry, LLC,
515 F.Supp.2d 937, 940 (W.D. Ark. 2007). In the absence of
such guidance, numerous district courts in this Circuit,
including this Court, have approved of the procedures
announced in the Fifth Circuit case of Mooney v. Aramco
Services Co., which establishes a two-step process for
certifying a collective action. 4 F.3d 1207, 1212 (5th Cir.
1995), overruled on other grounds by Desert Palace, Inc.
v. Costa, 539 U.S. 90 (2003); Aaron v. Summit Health
and Rehab., LLC, 2014 WL 1095829, at *2 (W.D. Ark. Mar.
19, 2014) (citing Mooney for the prevailing approach
used by federal courts in certifying collective actions);
Garrison v. ConAgra Packaged Foods, LLC, 2013 WL
1247649, at *1 (E.D. Ark. Mar. 27, 2013) (same);
Shackleford v. Cargill Meat Solutions
Corp., 2013 WL 209052, at *1 (W.D. Mo. Jan. 17,
2013) (same); Burch v. Qwest Commc'ns
Int'l, Inc., 677 F.Supp.2d 1101, 1114 (D. Minn.
two-step process described in Mooney involves a
progressively more rigorous analysis as to whether a putative
class of plaintiffs is "similarly situated," as
described in § 216(b) of the FLSA, and is thus suited
for the collective action model as a means of efficiently
litigating their claims. Mooney labels the first
step in the inquiry as the "notice ...