The opinion of the court was delivered by: Baylson, J.
MEMORANDUM RE: GRANTING PARTIAL COLLECTIVE ACTION FOR TRIAL
The issue presented is whether, and to what extent, the Court should allow this case to proceed as a collective action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b). Plaintiffs, current and former employees of Farmer's Pride Inc. ("the Defendant"), allege that the Defendant has failed to fully compensate them for the time spent putting on and taking off ("donning and doffing") items of sanitary and protective clothing and equipment ("PPE") at the beginning and end of their shifts and during their meal periods. For the reasons that follow, this Court will certify a collective action for one of the six subclasses proposed by Plaintiffs: the Deboning Department Third Shift subclass.
In a memorandum dated August 25, 2010, 2010 WL 3370809 ("8/25/10 Mem.") (Doc. No. 491), following extensive briefing and a two-day evidentiary hearing, the Court issued an order decertifying the class that had been previously conditionally certified, consisting of all the employees the named Plaintiffs sought to represent. However, the Court gave the Plaintiffs the opportunity to designate a smaller class or subclasses, that could be brought as a collective action, in view of Congress's stated intent that the FLSA should serve broad remedial purposes, and numerous cases allowing collective actions with somewhat similar facts. 8/25/10 Mem., 2010 WL 3370809 at *24 (citing De Asencio v. Tyson Foods, Inc., 500 F.3d 361, 373 (3d Cir. 2007)).
Following the Court's opinion, the parties submitted correspondence to the Court with their intentions as to the collective action. After a telephone conference held on September 29, 2010, the Court ordered additional briefing on a revised collective action. The parties filed extensive briefing in which both Plaintiffs and Defendant, with due respect for creative advocacy, overstate in their respective favor the consequences of the Court's August 25, 2010 Memorandum and Order.
III. The Parties' Contentions
The Plaintiffs' initial position was that the named Plaintiffs would represent all of the opt-in Plaintiffs--over 300 individuals--and that the Court could determine the liability of the Defendant for all of these individuals in one trial. However, the evidence presented at the evidentiary hearing clearly showed that such a large collective action would not be fair to either the Plaintiffs or the Defendant, given the extensive variation among the Plaintiffs relevant to whether and by how much any given Plaintiff was unlawfully undercompensated. 8/25/10 Mem., 2010 WL 3370809 at *10.
In their briefing in support of a revised collective action, the Plaintiffs defined six subclasses, the members of which they believe are similarly situated, in order to permit an efficient trial of their claims. Those classes separate the Plaintiffs by the three primary departments in which they worked, Deboning, Evisceration, and Cut-Up, and further divide those classes into First Shift and Third Shift. Pls.' Br. 5-6. Accordingly, the representative Plaintiffs' testimony need only be attributed to those members of the class who also were employed in the same department and shift. Pls.' Br. 9-10. Plaintiffs contend that the revised proposal will satisfy the "similarly situated" FLSA standard, because members of a particular department and shift shared, inter alia, the same supervisors, schedule, training, procedures, and policies. Pls.' Br. 10-14. Plaintiffs wish to proceed on the liability theory that the compensation system, even if implemented as Defendant claims, nonetheless failed to compensate Plaintiffs for donning and doffing activity. Pls.' Br. 7-8. Plaintiffs have proposed jury interrogatories as to liability. Pls.' Br. 8.
In its responsive brief, Defendant asserts that Plaintiffs' revised collective action proposal does not eliminate the variation that occurs at the individual level. Def.'s Br. 1-2. Defendant highlights inconsistencies in the testimony by Plaintiffs who worked within the same department as to what items of PPE the employees wore, how much time they spent donning and doffing, and what was the sequence of their pre- and post-shift activity. Def.'s Br. 8-13. Defendant also discusses purported individualized defenses that it will bring, including whether donning and doffing PPE is compensable under the FLSA. Def.'s Br. 24-27. Defendant contends that the proposed subclasses suffer from the same problem of extensive variation that plagued the larger single class of employees, and that Plaintiffs should not be allowed to proceed with any collective action whatsoever. Def.'s Br. 30.
The Court thoroughly addressed the standard governing certification of FLSA collective actions in its August 25, 2010 Memorandum. To briefly recap, under the FLSA, "An action . . . may be maintained . . . 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) (2010). The Third Circuit has directed the district courts in the Third Circuit to analyze collective action certification in two stages. First, at the conditional certification inquiry, a plaintiff must make a sufficient showing of a factual nexus between that individual's situation and other employees' situations, under a "comparatively liberal" standard. Ruehl v. Viacom, Inc., 500 F.3d 375, 388 (3d Cir. 2007). At the second stage, certification is reconsidered after some discovery, and the court engages in specific factual analysis to determine whether each plaintiff opting into the class is an appropriate party. Id. at 389 n.17. "District courts have ample discretion to consider (or to decline to consider) a revised class certification motion after an initial denial." In re Initial Pub. Offering Secs. Litig., 483 F.3d 70, 73 (2d Cir. 2007).
Upon reviewing the parties' briefs and the law, the Court makes the ...