Memorandum Order re: Motion for Conditional Certification and Court-Facilitated Notice (doc. no. 28)
ARTHUR J. SCHWAB, District Judge.
Plaintiff, Mike Lucke, filed this lawsuit, asserting a cause of action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq. Lucke now seeks conditional certification of this action as a collective, opt-in action under the FLSA, and he files a corresponding motion for court-facilitated notice to putative opt-in plaintiffs (doc. no. 28). Defendant opposes Plaintiff's motion for conditional certification primarily on the basis that Plaintiff has allegedly failed to meet his burden to prove that others "actually desire" to join the lawsuit. However, under the law as construed by the District Courts of this Circuit, and the corresponding lenient standard of review that this Court must employ, the Court will grant Plaintiff's motion for conditional certification without prejudice for Defendant to file a motion to de-certify the collective action at the appropriate time following notice and discovery.
II. Factual Background
PPG Industries, Inc. ("PPG") is a global supplier of paints, coating, optical products, specialty materials, chemicals, glass and fiberglass. PPG sells paint and stain products and sells them to Menards stores in 14 states, mainly in the mid-west. Menards, in turn, sells those products to its customers at approximately 280 home improvement stores. PPG employs a team of Territory Managers, roughly 26 in all, to serve its Menards business. The primary responsibility of PPG's Territory Managers is to promote sales of PPG's paints and stain products by Menards to its customers. To that end, the primarily function of the Territory Manager is to make sure that PPG paints and stains are properly stocked, priced and displayed within the shelf space PPG has negotiated at the Menards stores.
Prior to January 1, 2012, Territory Managers were classified as exempt under the FLSA. On January 1, 2012, PPG reclassified all the Territory Managers as non-exempt, and after the reclassification, PPG implemented a mechanism to track the hours that the Territory Managers worked outside the Menards' store, doing administrative activities, driving between stores, and other time spent that was not captured by the Menards sign-in/sign-out system.
In support of his motion for conditional certification as an opt-in, Lucke has submitted an affidavit describing the nature of his job duties as a Territory Manager, including 19 different responsibilities. See Affidavit of Plaintiff Lucke (¶ 10). As directed by PPG management, all Territory Managers were required to answer questions from Menard customers, replenish and remove rebate materials, re-label Pittsburgh products, correct erroneous Menards inventory counts for Pittsburgh products, build displays, cross-merchandize Pittsburgh products, and hold in-store demonstrations. According to Plaintiff, all Territory Managers had essentially identical job duties. Also, according to Plaintiff, the Territory Managers were required to complete certain ministerial tasks from their home computers, including routine reports to their supervisors, upper-level managers and/or executives for the Menards Pittsburgh teams, and exchanging emails, texts and phone calls with upper-level managers. Plaintiff posits that Territory Managers also traveled to and attended regional and national and sale meetings and other trainings on Pittsburgh products. And, although they were titled as "Managers, " according to Plaintiff, they did not perform managerial duties, nor did any other PPG employee report to them and they were without authority to hire, fire or set salaries for other employees. Plaintiff avers that PPG management set a policy that the Menards Team was required to spend four hours inside each Menards stores and that they visit two stores per business day.
According to Lucke, prior to January 1, 2012, no system existed for tracking time spent by Territory Managers in performing the ministerial tasks on their home computers. Nor did any system exist for tracking time spent driving to, from, or between stores. Furthermore, some or all of this drive time was spent simultaneously performing other job-related tasks such as engaging in business communications via cell phone and/or email, or moving supplies and materials to and between Menards stores. Plaintiff was paid an annual salary of $32, 000.00, which was within the range of roughly $28, 000.00 to $34, 000.00 paid to Territory Managers.
Plaintiff Lucke attested that a number of Territory Managers including himself, consistently complained that Territory Managers were really working many more than eight hours per day. Luck also stated that his drive times between his first or last store and his home were as many as 4 or 5 hours. Accordingly to Plaintiff, Territory Managers were in reality working a 10-12 hour days, but being paid for 8 hours.
According to the affidavit of Plaintiff, the Territory Managers (approximately 26) in this proposed collective action have been willfully misclassified as exempt from the FLSA's overtime requirements, and they were uniformly denied proper straight overtime and overtime compensation for all hours worked in excess of forty per week.
A. Motion for Conditional Certification
The FLSA states that employers who require their employees to work more than forty hours per week must pay them for that excess time at a rate not less than one and one-half times the regular rate at which they are employed. 29 U.S.C. § 207(a)(1). An employee who is not paid for this excess time may bring suit under the FLSA. 29 U.S.C. § 216(b). Where, as here, the employer is alleged to have violated this provision, an employee may pursue an action in a representative capacity for "other employees similarly situated, " 29 U.S.C. § 216(b). Unlike a class action pursuant to Rule 23, only those employees who voluntarily opt-in to the litigation become class members.
While the FLSA does not define the term "similarly situated, " the District Courts in this Circuit have adopted a two part test to determine whether potential class members are "similarly situated." Unfortunately, there is a lack of uniformity with regard to how the District Courts within the Third Circuit apply the two stage test, because there is no agreement on the appropriate level of proof for a stage one determination on whether potential class members are similarly situated. Some Courts have conditionally certified based upon a "mere allegation that the putative class members are unified by a single policy of the defendant employer, " while others Courts, including the undersigned, have adopted an approach that requires a "modest factual nexus between their situation and that of the ...