The opinion of the court was delivered by: Ambrose, Chief District Judge
MEMORANDUM ORDER OF COURT
Plaintiffs filed a Motion for Expedited Collective Action Notification for their Fair Labor Standard Act ("FLSA") claim that the Defendants' Meal Break Deduction Policy is unlawful under 29 U.S.C. §216(b) of the FLSA. (Docket No. 3). Specifically, Plaintiffs argue that Defendants' practice of automatically deducting thirty minutes from employees' recorded time after five or six hours worked violated the FLSA. Therefore, Plaintiffs seek an order conditionally certifying the class and court approved notice to all current and former hourly employees of Defendants who were subject to the automatic pay deduction. Plaintiffs also seek the following: A list, provided by Defendants, of each employee's name, current or last known address, telephone number, social security number, location of employment, dates of employment, date of birth, and e-mail address of all current and former employees who are/were subject to the Meal Break Deduction Policy; Notices and opt-in forms to be posted by Defendants in a conspicuous place at Defendants' locations where employees can see such notices during the pendency of the lawsuit; Notices and opt-in forms to be e-mailed to employees; and Notices to be publicized five times in Defendants' employee newsletter or other employee communication.
A. Conditional Certification
The FLSA mandates employers to pay employees at least the minimum wage for all hours worked. 29 U.S.C. § 201, et seq. The FLSA permits employees to maintain collective action under 29 U.S.C. §216(b) on their own behalf and on behalf of all similarly situated employees. Plaintiffs have petitioned to proceed collectively against Defendants for automatic meal break wage deductions that occurred when work was performed during that time under 29 U.S.C. § 216(b). In relevant part, this section authorizes collective actions against employers: 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); Sperling v. Hoffman La-Roche, Inc., 862 F.2d 439, 444 (3d.Cir.1988) (two requirements for §216(b) class action are that employees are similarly situated and each class member file individual consent to opt-in).
The FLSA does not define the term "similarly situated" and neither the United States Supreme Court nor the Court of Appeals for the Third Circuit provide direct guidance on determining whether potential class members are similarly situated. In the absence of definitive precedent, district courts in the Third Circuit have developed a two-stage test. Kronick v. bebe Stores, No. 07-4514, 2008 WL 4546368, at 1 (D. N.J. Oct. 2, 2008). During the initial notice stage, the court determines whether a class should be conditionally certified for the purpose of notice to potential opt-in plaintiffs and for pretrial discovery regarding their individual claims. Mueller v. CBS, Inc., 201 F.R.D. 425, 428 (W.D.Pa.2001); Stanislaw, at 1, citing, Mooney v. Aramaco Servs. Co., 54 F.3d 1207,1213-14 (5th Cir.1995). In so doing, the court preliminarily determines whether the proposed class consists of similarly situated employees. Smith v. Sovereign Bancorp, No. 03-2420, 2003 WL 22701017, at 2 (E.D. Pa. Nov. 13, 2003). Courts generally examine the pleadings and affidavits of the parties to decide whether the proposed class members are similarly situated, see Aquilino v. Home Depot, Inc., No. 04-4100, 2006 WL 2583563 at 1 (D.N.J. Sept. 7, 2006), and utilize a "fairly lenient" standard in rendering such a determination. Pontius v. Delta Financial Corporation, No. 04-1737, 2005 WL 6103189, 3 (W.D. Pa., June 24, 2005). See also De Asencio v. Tyson Foods, 130 F.Supp.2d 660, 663 (E.D. Pa. 2001) (at first tier, plaintiffs have "fairly low burden" to prove similarly situated requirement). If the plaintiff meets the requisite showing, the class is conditionally certified for the purpose of notice and discovery. Armstrong v. Weichert Realtors, No. 05-3120, 2006 WL 1455781, at 2 (D. N.J. May 19, 2006). Once the class is conditionally certified, notice is given to the potential plaintiffs so that they may elect whether to opt-in to the action. Stanislaw, at 1.
In the second stage of class certification, after the court is more fully informed through discovery, the defendant may move to decertify the class on the basis that the "similarly situated" standard has not been met and the court makes its final certification decision. Sperling, 826 F.2d at 444; Pontius, at 3. The present matter involves a stage one analysis.
The district courts in this Circuit do not unanimously agree on the appropriate level of proof for a stage one determination that potential class members are similarly situated. Some courts confer conditional certification and notice if a plaintiff advances an allegation that he and the proposed class members were victims of a single employer policy. De Asencio, 130 F.Supp.2d at 663; Goldman v. Radio Shack Corp., No. 03-0032, 2003 WL 21250571, at *8 (E.D. Pa. April 16, 2003). Under this evidentiary approach, preliminary certification is granted upon a mere allegation that the putative class members were injured by a single policy of the defendant employer. Id. (conditional certification requires only lax showing of similarly situated). Others courts apply a more exacting, yet still relaxed, test requiring the plaintiffs to show a modest factual nexus between their situation and that of the proposed class members. Aquilino, at 2; Smith, at 2; Armstrong, at 2 (conditional certification issue determined under "modest factual showing" standard); Bishop v. AT&T Corp., No. 08-468, 2009 WL 763946, 2-3 (W.D. Pa. March 23, 2009); Stanislaw v. Erie Indem. Co., No. 07-1078, 2009 WL 426641, 1-2 (W.D. Pa. Feb. 20, 2009); Dreyer v. Altchem Environmental Services, Inc., No. 06-2393, 2006 WL 3676013, at 2 (D. N.J. Dec. 12, 2006) (plaintiffs must show factual nexus between their situation and situations of other employees); Bond v. National City Bank of Pennsylvania, 2006 WL 1744474, 4 (W.D.Pa. June 22, 2006); Smith, at 2-3.
In Smith, the district court observed that the mere allegation test contradicted the design of the FLSA's opt-in requirement to limit the size of collective actions, and chose to adopt the modest factual showing approach. Id. at 2-3. This evidentiary standard requires a plaintiff to show "a factual nexus between their situation and the situation of other current and former [employees] sufficient to determine that they are 'similarly situated.' " Aquilino, at 1 (citation omitted). The Smith court described this standard of proof, as a "more stringent-although nonetheless lenient-test that requires the plaintiff to make a 'modest factual showing' that the similarly situated requirement is satisfied." Id. at 2 (citation omitted); see, Mueller, 201 F.R.D. at 428 (requiring plaintiff to provide "a sufficient factual basis on which a reasonable inference could be made" that potential plaintiffs are similarly situated); Bosley v. Chubb Corp., No. 04CV4598, 2005 WL 1334565, 3 (E.D. Pa. June 3, 2005). I agree with the reasoning of those courts that have required "modest factual showing" approach. This approach "enables a court to narrow the potential class from all of a defendant's employees to just those employees who can possibly" have a claim under the same policy as allegedly affected Plaintiffs. Smith, at 3.
2. Affirmations and Opt-In Consent Forms
To support their position, Plaintiffs submit the affirmations of six employees all of whom were nurses: Andrew Kuznyetsov, Charles Boal, Marthann Heilman, Annamarie Finucan, Daranette Smiley-McKeithen, and Maxine Thomas. (Docket No. 5, ¶¶12-18). The affirmations are substantially similar. Id. at ¶¶13-18, Docket Nos. 5-7 through 5-12). Therein, they assert that they are employees of Defendants and that they, and all hourly employees, were subjected to an automatic pay deduction of 30 minutes from pay checks after 5 hours worked in shift. (Docket Nos. 5-7 through 5-12, ¶¶3-4). They further contend that they, and others like them, were not paid when they were required to work through, or during part of, their 30 minute meal breaks, nor did Defendants ensure that they received their full meal break. (Docket Nos. 5-7 through 5-12, ¶¶5-40).
Defendants argue that the affirmations are fatally flawed because: 1) they only allege that they worked through meal periods as a result of patient care needs, while they are seeking conditional class certification for all hourly employees, even though there are employees who do not perform any patient care services; and 2) they fail to disclose whether the affiants have personal knowledge as it relates to situations surrounding the generalized "other employees" discussed in the affidavits and, therefore, contain inadmissible hearsay.*fn1 (Docket No. 68, pp. 4-5, 26-28). With regard to the first argument, I disagree with Defendants that the affiants only allege that they worked through meal periods as a result of patient care needs. To the contrary, they also assert that they work through meals due to staffing issues. (Docket Nos. 5-7 ¶12; 5-8, ¶12; 5-9, ¶12; 5-10, ¶12; 5-11, ¶12; and 5-12, ¶12. Consequently, I do not find merit to this argument.
With regard to Defendants' hearsay argument, however, I agree with Defendants that the information contained in the affirmations relating to "other employees" is inadmissible hearsay.
Only admissible evidence may be considered in deciding a motion for conditional class certification under 29 U.S.C. § 216(b) of the FLSA. See, e.g., Dreyer v. Altchem Environmental Services, Inc., 2007 U.S. Dist. LEXIS 71048 at *7 (D. N.J.2007) ("courts will not consider affidavits that are not founded on personal knowledge"); Ulysse v. Divosta Bldg. Corp., 2006 U.S. Dist. LEXIS 89414 at *4, 2006 WL 3618449 (S.D. Fla.2006) (hearsay in plaintiff's affidavit disregarded); Harrison v. McDonald's Corp., 411 F.Supp.2d 862, 865-866 (S.D. Ohio 2005) ("hearsay statements cannot be considered in connection with a Plaintiff's § 216(b) motion for the purpose of determining whether other employees are similarly situated"); Richards v. Computer Sciences Corp., 2004 U.S. Dist. LEXIS 19637 at *4, 2004 WL 3517039 (D.Ct. 2004) (hearsay statements in affidavit in support of motion pursuant to 29 U.S.C. § 216(b) will be stricken). In Harrison, for example, the ...