Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Alvarez v. BI Inc.

United States District Court, E.D. Pennsylvania

May 17, 2018

KAREL ALVAREZ & JUAN TELLADO, Individually and on behalf of all persons similarly situated, Plaintiffs,
v.
BI INCORPORATED, Defendant.

          MEMORANDUM OPINION

          Goldberg, J.

         This is a putative collective action for unpaid wages and overtime compensation under the Fair Labor Standards Act (“the FLSA”). Named Plaintiffs Karel Alvarez and Juan Tellado are an employee and former employee of Defendant BI Incorporated. Named Plaintiffs claim- on behalf of themselves and other similarly situated employees and former employees-that Defendant failed to pay them wages and overtime compensation for certain compensable work, in violation of the FLSA.

         Pending are: (1) Plaintiffs' Motion to Conditionally Certify an FLSA Collective Action and to Facilitate Notice (Plaintiffs' “Notice Motion”); (2) Defendant's Motion for Partial Summary Judgment; (3) Plaintiffs' Motion to Stay or Deny Defendant's Motion for Partial Summary Judgment (Plaintiffs' “Rule 56(d) Motion”); and (4) Plaintiffs' Motion for Equitable Tolling. For the reasons that follow, Plaintiffs' Notice Motion and Rule 56(d) Motion will be granted; Defendant's Partial Summary Judgment Motion will be denied without prejudice; and Plaintiffs' Motion for Equitable Tolling will be denied.

         I. FACTUAL & PROCEDURAL BACKGROUND

         The following facts are taken from Plaintiffs' Class and Collective Action Complaint, Defendant's Answer, the briefs filed in connection with the instant motions, and the exhibits and declarations attached thereto.

         A. Factual Background

         Defendant, BI Incorporated, provides products and services to government agencies that monitor parolees, probationers, pretrial defendants, and the like. In 2004, Defendant was awarded a contract by U.S. Immigration and Customs Enforcement (“ICE”) to monitor aliens released from ICE detention pending immigration proceedings. (This program, called the “Intensive Supervision Appearance Program, ” is referred to hereinafter as “ISAP, ” and Defendant's contract with ICE is referred to as the “ISAP Contract.”) (Compl. ¶ 17; Answer ¶ 17; Dep. of Jeffrey McGee, Pls.' Mem. in Supp. of Notice Mot., Ex. 4 (hereinafter cited as “McGee Dep.”) at 6:12-13, 15:8-16:25; Pls.' Mem. in Supp. of Notice Mot., Ex. 6.)[1]

         Under the ISAP Contract, Defendant is responsible for completing specified tasks to monitor the aliens that ICE designates for ISAP supervision. (Such aliens are referred to as ISAP “participants.”) The required tasks include installing electronic monitoring equipment on participants and visiting with participants-both at the participants' homes and at Defendant's offices. (Pls.' Mem. in Supp. of Notice Mot., Ex. 6.)

         To carry out these tasks, Defendant has employed a number of “ISAP Case Specialists.” During the time period at issue, Defendant employed more than 400 ISAP Case Specialists in approximately 61 offices, located in 32 states. Each of these offices was led by an ISAP Program Manager, who supervised the ISAP Case Specialists assigned to that office. (Compl. ¶ 8; Answer ¶ 8; McGee Dep. 60:23-61:2.)

         Named Plaintiffs Karel Alvarez and Juan Tellado have worked for Defendant as ISAP Case Specialists. Named Plaintiff Alvarez was employed in Defendant's Philadelphia office from July 2012 through November 2015, and has since been employed in Defendant's office in Newark, New Jersey. Named Plaintiff Tellado was employed in Defendant's Philadelphia Office from January 2014 through January 2015. (Compl. ¶¶ 21-22; Answer ¶¶ 21-22.)

         B. Procedural History of This Collective Action

         Plaintiffs initiated this action on June 2, 2016, by filing a Class and Collective Action Complaint, claiming that Defendant failed to pay them-and other ISAP Case Specialists throughout the United States-wages and overtime compensation, in violation of the FLSA and the Pennsylvania Minimum Wage Act.[2]

         Specifically, Plaintiffs allege that Defendant failed to pay them for three categories of compensable work. First, Plaintiffs allege that they did various work “off-the-clock”-by, for example, working though lunch breaks-and that such off-the-clock work was required to meet the demands created by their heavy workload. Second, Plaintiffs claim that Defendant failed to compensate them for time that they were “on call”-that is, time that they were required to be prepared to respond within minutes to an alert triggered by an ISAP participant. And third, Plaintiffs assert that Defendant failed to compensate them for certain time related to visiting participants at their homes (referred to as “home visits”). Specifically, this was time spent commuting, in Defendant's vehicles, from the ISAP Case Specialists' own homes to the residence of the first ISAP participant to be visited during a given day; time spent reverse commuting home after a day's final home visit; and tasks undertaken in preparation for home visits, such as mapping out a route to the participants' homes, and uploading necessary information into their work phones. (Compl. ¶¶ 32-67.)

         After Defendant answered the Complaint, I held a Rule 16 Conference, and on November 4, 2016, issued a Scheduling Order providing limited discovery on the issue of conditional certification of a collective action under the FLSA. The Scheduling Order allowed Plaintiffs to “serve written discovery requests and take one (1) Rule 30(b)(6) deposition of Defendant's corporate designee, ” and specified that both the “deposition and discovery requests shall be limited to the issue of conditional certification under the FLSA.” (11/4/16 Or., Doc. No. 23.)

         On April 3, 2017, Plaintiffs filed their Notice Motion, seeking conditional certification of a collective action under the FLSA and the issuance of a court-approved notice to other current and former ISAP Case Specialists. In addition to opposing Plaintiffs' Notice Motion, Defendant filed a Motion for Partial Summary Judgment on Plaintiffs' claims regarding home visits. Plaintiffs responded with a motion under Federal Rule of Civil Procedure 56(d), urging me to defer consideration of Defendant's Partial Summary Judgment Motion until after discovery on the merits.

         Since the filing of the Complaint in June 2016, ten additional ISAP Case Specialists have opted in to this collective action, bringing the total number of Plaintiffs to twelve. In November 2017, five months after filing their Notice Motion, Plaintiffs filed a Motion for Equitable Tolling, requesting that the statute of limitations for any additional potential opt-in plaintiffs be tolled from the date of the filing of their Notice Motion, April 3, 2017, until ten days after my decision on the Notice Motion. Defendant opposes such tolling.

         For the reasons that follow, I conclude that Plaintiffs' FLSA claims should be conditionally certified as a collective action, and that notice should be sent to potential opt-in plaintiffs. I further conclude that Defendant's Motion for Partial Summary Judgment is premature, as discovery on the merits of Plaintiffs' claims has not been completed. Finally, I conclude that equitable tolling of the statute of limitations for potential opt-in plaintiffs is not appropriate in this case.

         II. DISCUSSION

         A. Conditional Certification of a Collective Action

         “The FLSA establishes federal minimum wage, maximum hour, and overtime guarantees that cannot be modified by contract.” Genesis Healthcare Corp v. Symczyk, 569 U.S. 66, 69 (2013); see also 29 U.S.C. § 201 et seq. Employees alleging that their employer violated these guarantees by failing to pay wages and overtime compensation may sue on “behalf of . . . themselves and other employees similarly situated.” 29 U.S.C. § 216(b). “A suit brought on behalf of other employees is known as a ‘collective action.'” Genesis Healthcare Corp., 569 U.S. at 69.

         A collective action under the FLSA differs from a class action under Federal Rule of Civil Procedure 23, in that “the mere presence of [collective action] allegations does not automatically give rise to the kind of aggregate litigation provided for in Rule 23.” Halle v. W. Penn Allegheny Health Sys. Inc., 842 F.3d 215, 225 (3d Cir. 2016). “Rather, the existence of a collective action depends upon the affirmative participation of opt-in plaintiffs, ” who must, to pursue their claims, affirmatively choose to join in the collective action by filing a written opt-in notice with the court. Id.; see also 29 U.S.C. § 216(b) (providing that “[n]o employee shall be a party plaintiff to [a collective] action [under the FLSA] 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”).

         The FLSA does not define the term “similarly situated, ” nor does it specify a procedure for determining whether the employees that a named plaintiff seeks to include in a collective action are similarly situated. But the United States Court of Appeals for the Third Circuit has approved a “practical approach to managing FLSA collective actions” that consists of two steps. Halle, 842 F.3d at 224.

         At the first step, a court determines whether a collective action should be “conditionally certified.” Halle, 842 F.3d at 224. In order to obtain conditional certification, the named plaintiffs need only make “a modest factual showing-something beyond mere speculation-to demonstrate a factual nexus between the manner in which the employer's alleged policy affected him or her and the manner in which it affected the proposed collective action members.” Id. (internal quotation marks omitted) (citing Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 536 n.4 (3d Cir. 2012)).

         Because this determination occurs “early in the litigation when minimal evidence is available to the court, ” the evidentiary standard is “extremely lenient.” Viscomi v. Clubhouse Diner, No. 13-cv-4720, 2016 WL 1255713, at *3 (E.D. Pa. Mar. 31, 2016). “The Court does not evaluate the merits of a case when ruling on a motion for conditional certification, ” but simply determines whether the named plaintiffs have “provide[d] modest evidence that the proposed [collective] consists of similarly situated employees who were collectively the victims of a single decision, policy, or plan.” Id. (internal quotation marks omitted); see also Bamgbose v. Delta-T Group, Inc., 684 F.Supp.2d 660, 664 n.4 (E.D. Pa. 2010) (noting that, when deciding a motion for conditional certification, “[t]he court does not make any credibility determinations or findings of fact when presented with contrary evidence”).

         If a court determines that the named plaintiffs have met this lenient standard, and conditionally certifies a collective action, “[t]he sole consequence . . . is the dissemination of court-approved notice to potential collective action members.” Halle, 842 F.3d at 224 (explaining that “[c]onditional certification, therefore, is not a true certification, but rather an exercise of a district court's discretionary authority to oversee and facilitate the notice process”).

         Following notice to potential opt-in plaintiffs and remaining discovery, a collective action moves to the second step: final certification. Halle, 842 F.3d at 226. At this stage, “after discovery, and with the benefit of a much thicker record than it had at the [conditional certification] stage, a court . . . makes a conclusive determination as to whether each plaintiff who has opted in is in fact similarly situated to the named plaintiff[s].” Symczyk v. Genesis Healthcare Corp., 656 F.3d 189, 192 (3d Cir. 2011), rev'd on other grounds, 569 U.S. 66 (2013). “This second stage is less lenient, and the plaintiff bears a heavier burden.” Id.

         The case before me is currently at the first of these two stages: conditional certification. Having completed limited discovery relevant to whether the Named Plaintiffs-Alvarez and Tellado-are similarly situated to other current and former ISAP Case Specialists, Plaintiffs seek conditional certification of a “collective”[3] and approval of a notice to be sent to members of that collective. Accordingly, I must determine whether Plaintiffs have met their modest evidentiary burden of demonstrating that they are similarly situated to the members of the collective that they seek to conditionally certify.

         Plaintiffs seek conditional certification of the following collective:

All current and former ISAP Case Specialists employed by BI Incorporated who performed work in the United States between [insert date three years prior to the date that the Court issues an Order granting Conditional Certification but including 60 days of agreed upon tolling][4] and the present.

         Plaintiffs contend that they are similarly situated to other ISAP Case Specialists nationwide because all ISAP Case Specialists share the same job responsibilities and pay, receive the same training, and are subject to the same management structure. In addition to sharing these general characteristics, Plaintiffs contend that for each of the types of work they claim went unpaid-off-the-clock work, on-call time, and certain time related to home visits-ISAP Case Specialists were subject to the same official policies and unofficial practices.

         Plaintiffs have provided ample evidence that ISAP Case Specialists nationwide shared the same job responsibilities, pay, training, and management structure. As to job responsibilities, Plaintiffs have provided a document, produced by Defendant, that sets out the primary job responsibilities of ISAP Case Specialists. (Pls.' Mem in Supp. of Notice Mot., Ex. 7.) Regarding pay, Plaintiffs have pointed to Defendant's corporate representatives' testimony that ISAP Case Specialists nationwide were hourly employees eligible for overtime and subject to uniform pay policies, such as “regular pay, ” “overtime pay” and “on-call pay.” (McGee Dep. 140:13-19; Dep. of Heather Chico, Pls.' Mem in Supp. of Notice Mot., Ex. 12 (hereinafter cited as “Chico Dep.”) at 44:12-19.) As to training, Defendant's corporate representatives testified that ISAP Case Specialists all receive the same training, and were subject to the same employee handbook and standard operating procedures, which materials Defendant produced in discovery. (McGee Dep. 197:23-198:2; Dep. of Nicole Keith, Pls.' Mem in Supp. of Notice Mot., Ex. 11 (hereinafter cited as “Keith Dep.”) at 30:21-31:1, 56:10-13, 116:18-117:15; Pls.' Mem in Supp. of Notice Mot., Exs. 10, 13, 29.) And finally, as to how ISAP Case Specialists were managed, Plaintiffs provided evidence of a uniform management structure in which ISAP Case Specialists in each office answer to their office's ISAP Program Manager, who, in turn, reports to one of several Regional Directors, who answers to a nationwide ISAP director. (McGee Dep. 60:19-61:7; Pls.' Mem in Supp. of Notice Mot., Ex. 9.) These similar characteristics allowed Defendant to shift ISAP Case Specialists from one office to another to meet staffing needs. (McGee Dep. 217:16-20; Keith Dep. 119:7-11.)

         Defendant does not appear to dispute that ISAP Case Specialists throughout the nation are similarly situated in these general ways. Instead, Defendant contends that as to Plaintiffs' three uncompensated work claims-off-the-clock work, on-call time, and certain time related to home visits-ISAP Case Specialists were subject only to lawful official policies, and that Plaintiffs have failed to show an unlawful, unofficial practice applicable nationwide. However, for the reasons set out below, I conclude that Plaintiffs have satisfied their modest evidentiary burden as to each of their three claims.

         1. Off-the-Clock Work

         Plaintiffs contend that they often worked off-the-clock, including through their lunch periods and after regular business hours, and that Defendant did not compensate them for this time. In contending that ISAP Case Specialists throughout the nation are similarly situated in this regard, Plaintiffs acknowledge that Defendant had an official policy prohibiting off-the-clock work. However, Plaintiffs contend that ISAP Case Specialists nationwide routinely did work off-the-clock as a result of two uniform practices: (1) understaffing of Defendant's offices, and (2) payment of bonuses to ISAP Program Managers based, in part, on how little overtime was paid to ISAP Case Specialists.

         a. Understaffing

         First, Plaintiffs point to evidence that Defendant's offices throughout the nation were understaffed. Defendant's corporate representative testified that the ISAP Contract called for Defendant to maintain certain minimum ratios of ISAP Case Specialists to ISAP participants, and that Defendant frequently failed to satisfy these staffing requirements. For example, Defendant's corporate representative acknowledged that the ISAP Contract in place after November 2014 required Defendant to employ at least one ISAP Case Specialist for every 100 ISAP participants, and that Defendant fell short of this staffing requirement “a good bit, ” in light of the “explosive growth” of ISAP, as well as delays in obtaining security clearances necessary for newly-hired ISAP Case Specialists to begin work. (McGee Dep. 209:22-210:23, 213:9-214:7.)

         Plaintiffs contend that the shortage of ISAP Case Specialists was particularly significant because, under the ISAP Contract, ISAP Case Specialists were required to conduct certain tasks within certain time frames. Evidence in the record supports Plaintiffs' contention, at least for the ISAP Contract applicable from November 2009 through November 2014. Under that contract, for example, ISAP Case Specialists were required to conduct home visits at certain specified intervals-such as every two weeks, or every four weeks, depending on the status of the particular participant's immigration proceedings. (Ex. 4, McGee Dep. 70:11-71:7.) Plaintiffs contend that these uniform and inflexible requirements, combined with understaffing nationwide, resulted in ISAP Case Specialists having more work than could be completed within the 40-hour workweek, thus necessitating off-the-clock work.

         Evidence of understaffing across a collective of employees can support conditional certification of a claim for uncompensated off-the-clock work. See, e.g., Pearsall-Dineen v. Freedom Mortg. Corp., 27 F.Supp.3d 567, 571 (D.N.J. 2014) (granting conditional certification where plaintiffs alleged that employer “imposed ‘production requirements' on [employees] that required them to work in excess of forty hours per week, ” and where these allegations were supported by declarations from multiple opt-in plaintiffs); Pereira v. Foot Locker, Inc., 261 F.R.D. 60, 64 (E.D. Pa. 2009) (granting conditional certification where employees alleged that their employer had an “insufficient labor budget . . . such that hours and overtime [were] regularly unpaid to retail employees who must work off-the-clock to perform basic job functions, ” and where employees supported these allegations with evidence that employees regularly punched out before finishing work).

         As in Pearsall-Dineen and Pereira, Plaintiffs here have alleged that ISAP Case Specialists were effectively required to work off-the-clock to complete necessary work, and have supported these allegations with declarations from employees stating that they did, in fact, work off-the-clock to complete required work. And surpassing Pearsall-Dineen and Pereira, Plaintiffs have provided at least some evidence to substantiate their claims that there was a shortage of ISAP Case Specialists, in the form of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.