The opinion of the court was delivered by: DuBOIS, J.
Plaintiff Chris A. Babin filed this action against defendants Stantec, Inc.; Stantec Consulting Services, Inc.; and Stantec Consulting, Ltd., on March 13, 2009, alleging violations of the mandatory overtime provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq. Plaintiff worked for the defendants as an Electrical Designer from October 5, 2000, to December 7, 2007, a job classified by defendants under the category "HE employees (Hourly, Straight Time Overtime)." (Plf.'s Brief 2-3.) Defendants' Staff Type Categories policy defines HE employees as "otherwise overtime exempt full-time employees [who] are paid at straight time for every hour worked after 40 hours." (Id. at Ex. H.)
Plaintiff alleges that defendants "intentionally and unilaterally misclassif[ied] Plaintiff and other similarly situated employees as professional overtime exempt employees, and then fail[ed] to pay those employees at the rate of one-and-one-half times their regular rate of pay for all hours worked in excess of forty (40) hours per week." (Id. at 2.) Plaintiff seeks to recover, on behalf of himself and all similarly situated employees of the defendants, unpaid overtime wages, liquidated damages, interest, costs, and attorneys' fees as authorized under FLSA. (Id.)
Presently before the Court is Plaintiff's Supplemental Motion for Conditional Certification of Collective Class, filed April 21, 2010, and defendants' Motion to Strike expert witness testimony, filed May 5, 2010. For the reasons stated below, the Court denies plaintiff's motion and denies as moot defendants' motion.
Plaintiff filed his first Motion for Conditional Certification of a Collective Class on September 1, 2009, seeking certification of a collective class of potential opt-in litigants as follows:
All current and/or former employees who work or worked for Defendants at any of their office locations throughout the United States as Designers and/or who are/were categorized by Defendants as "HE employees (Hourly, Straight Time Overtime)" at any time from March 13, 2006 through the present. (Id.) By Order of November 24, 2009, the Court denied plaintiff's first motion on the ground that "plaintiff has failed to state how all employees within the broad categories of HE employees and designers would be similarly situated to plaintiff -- that they were misclassified as HE employees and thus unlawfully paid straight-time overtime under FLSA." Babin v. Stantec, Inc., No. 09-CV-1160, at 5 (E.D. Pa. Nov. 24, 2009). The first motion was denied without prejudice to plaintiff's right to file a supplemental motion for certification of a collective class that meets the "similarly situated" standard after the completion of relevant discovery. Id.
Presently before the Court is plaintiff's Supplemental Motion for Conditional Certification of a Collective Class. In this motion, plaintiff moves for conditional certification of class limited only to designers, specifically:
All current and/or former employees who work or worked for Defendants at any of their office locations throughout the United States as a Designer in any capacity or discipline, and who were classified as overtime exempt employees at any time from March 13, 2006 through the present. (Pl.'s Brief 4.) As in his previous motion, plaintiff also requests authorization to serve court-supervised notice on all potential collective class members and asks the Court to compel defendants to provide the names, last known addresses, and phone numbers of these potential litigants. (Pl.'s Mot. 1.)
FLSA provides for collective actions by employees against employers who violate the statute, subject to two requirements: (1) the employees must be "similarly situated"; and (2) they must give "written consent." 29 U.S.C. § 216(b). The Supreme Court has held that "Section 216(b)'s affirmative permission for employees to proceed on behalf of those similarly situated" grants a district court the "requisite procedural authority to manage the process of joining multiple parties" in an orderly and sensible manner. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989). Thus, district courts have "discretion, in appropriate cases, to implement 29 U.S.C. § 216(b) . . . by facilitating notice to potential plaintiffs." Id. at 169.
FLSA does not define the term "similarly situated," and neither the Supreme Court nor the Third Circuit has directly addressed the meaning of the phrase. Courts in the Eastern District of Pennsylvania have adopted a two-step procedure for examining a proposed collective action. In the first stage, the district court makes a "preliminary inquiry into whether the plaintiff and the proposed group are similarly situated. This inquiry occurs early in the litigation when minimal evidence is available to the court." Parker v. NutriSystem, Inc., No. 08-1508, 2008 WL 4399023, at *1 (E.D. Pa. Sept. 26, 2008). In the second stage, which takes place after discovery is complete, the court conducts a "factual analysis of each employee's claim to ensure that each proposed plaintiff is an appropriate member of the collective action." Lugo v. Farmer's Pride Inc., No. 07-cv-00749, 2008 WL 638237, at *3 (E.D. Pa. Mar. 7, 2008). In making its second stage determination, the court "require[s] a higher level of proof than was necessary at the first stage for conditional certification." Id. The present motion implicates the first of these two steps.
As stated in the Court's Order of November 24, 2009, plaintiff's supplemental motion will be considered under the "modest factual showing" standard, as parties have had the benefit of discovery on this issue. Babin v. Stantec, Inc., No. 09-CV-1160, at 5 (E.D. Pa. Nov. 24, 2009). Thus, in order to grant plaintiff's motion for conditional certification of a collective class, plaintiff must "make a 'modest factual showing' that the similarly ...