United States District Court, E.D. Pennsylvania
WILLIAM GARCIA, for himself and all others similarly situated, Plaintiff,
VERTICAL SCREEN, INC., Defendant.
a collective action under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 201, et
seq. Plaintiff was formerly employed as a Researcher by
defendant Vertical Screen, Inc., and asserts claims
individually and on behalf of similarly situated former and
current Researchers and Team Leaders employed by defendant.
Plaintiff alleges defendant violated the FLSA by (1) failing
to pay Researchers and Team Leaders for the ten to fifteen
minutes it took to log in to defendant's timekeeping
system each work day and (2) shaving one to two unapproved
overtime hours off Researchers' and Team Leaders'
recorded work time each month.
before the Court is Plaintiff's Motion for Order
Authorizing Notice to Similarly Situated Persons under 29
U.S.C. § 216(b). The Court treats the motion as a motion
for conditional certification of an opt-in FLSA collective
action and the dissemination of opt-in class notice to
“all persons who have worked as a full-time,
hourly-paid Vertical Screen Researcher or Team Leader during
the past three years, ” based on plaintiff's claims
of unpaid log-in time and shaved overtime hours. For the
reasons that follow, plaintiff's motion is granted in
part and denied in part.
Vertical Screen, Inc., is a “family” of four
entities specializing in applicant screening and
fingerprinting and identity services. Compl. ¶ 6.
Defendant controls all “significant business
functions” of the four entities, including setting
policies and procedures. Id. Defendant employs
approximately 900 hourly-paid Researchers and Team Leaders
responsible for running pre-employment background checks on
individuals applying for work with defendant's clients.
Id. ¶ 5. Plaintiff William Garcia was employed
as a full-time, hourly Researcher from August 2013 to August
2018. Id.; Pl. Mot., Ex. B, Pl. Decl. (“Pl.
Decl.”) ¶ 2.
alleges that defendant's policies require hourly-paid
Researchers and Team Leaders to track their time through the
ADP timekeeping system. Compl. ¶ 8. According to
plaintiff, logging into the ADP system took about ten minutes
each day because “hardware and software problems . . .
often require[d] them to perform updates, reconfigure
passwords, and/or repeat the log-in process one or more times
until their log-in [was] accepted.” Id. When
problems with the system prevented logging in altogether,
plaintiff states that defendant required Researchers and Team
Leaders to spend an additional five minutes emailing their
supervisors to “describe[e] their log-in problems and
advis[e] they were at work.” See Id. The time
stamp of this email would then serve as the start time for
their work day. Id. Plaintiff claims that defendant
did not pay wages for the ten to fifteen minutes it took to
log in each day, resulting in about two to four hours of
unpaid time each month. See Id. ¶ 9. Plaintiff
further asserts that he and other Researchers and Team
Leaders informed their supervisors, department managers, and
the human resources department about issues logging into the
ADP system, but nothing was done to address the problem.
See Id. ¶ 10; Pl. Decl. ¶¶ 8-9.
addition, defendant's policies required hourly-paid
Researchers and Team Leaders to get approval from a
supervisor before working overtime. Pl. Reply 6; Pl. Mot.,
Ex. D, Vertical Screen Employee Handbook 2011
(“Employee Handbook”), at 26. Plaintiff avers
that defendant's policies required department managers
and supervisors to review Researchers' and Team
Leaders' work hours weekly and remove
“unapproved” overtime hours, for which no wages
were paid. Pl. Mem. Supp. Mot. Notice (“Pl. Mem.
Mot.”) 4; see Compl. ¶ 8. Plaintiff
maintains that this process resulted in about one to two
overtime hours being cut from hourly-paid Researchers'
and Team Leaders' pay each month. See Pl. Mem.
Mot. 4; Compl. ¶ 9; Pl. Decl. ¶¶ 10, 12.
Plaintiff states that he and other Researchers and Team
Leaders spoke with supervisors, department managers, and the
human resources department about hours being
“shaved” from their weekly work time, but nothing
was done to address the problem. See Comp. ¶
11; Pl. Decl. ¶¶ 11-12.
November 1, 2018, plaintiff filed the Complaint, alleging
violations of the FLSA, alleging defendant (1) failed to pay
wages for log-in time and (2) shaved unapproved overtime
hours. On February 25, 2019, plaintiff filed Plaintiff's
Motion for Order Authorizing Notice to Similarly Situated
Persons Under 29 U.S.C. § 216(b) (Document No. 17),
treated as a motion for conditional certification and
approval of notice. Following an Initial Pretrial Conference,
the Court issued a Scheduling Order for briefing the motion
on February 27, 2019 (Document No. 18). On March 22, 2019,
defendant responded to plaintiff's motion (Document No.
20), and on April 10, 2019, plaintiff filed a reply (Document
22, 2019, the Court conducted a telephone conference with the
parties, through counsel, during which the Court stated that
it was inclined to conditionally certify the class with
respect to plaintiff's claim of unpaid log-in time, but
not with respect to the claim of shaved overtime hours.
Following the conference, at plaintiff's request, the
Court issued an Order requiring additional evidence with
respect to the shaved overtime hours claim-at least one
additional declaration-demonstrating, inter alia,
that plaintiff is similarly-situated to other hourly-paid
Researcher and Team Leaders (Document No. 22). On June 3,
2019, plaintiff filed supplemental briefing, including an
additional declaration in support of his motion (Document No.
23). On June 19, 2019, defendant responded (Document No. 24),
and that same day, plaintiff filed a reply (Document No. 25).
The motion is thus ripe for decision.
may bring a collective action against an employer who they
allege violated the FLSA subject to two requirements: the
employees must (1) be “similarly situated, ” and
(2) give written consent. 29 U.S.C. § 216(b).
in the Third Circuit “follow a two-step process for
deciding whether an action may properly proceed as a
collective action under the FLSA.” Camesi v. Univ.
of Pittsburgh Med. Ctr., 729 F.3d 239, 243 (3d Cir.
2013). At the first stage, conditional certification, the
district court “makes a preliminary determination as to
whether the named plaintiffs have made a ‘modest
factual showing' that the employees identified in their
complaint are ‘similarly situated.'”
Id. (citing Zavala v. Wal Mart Stores Inc.,
691 F.3d 527, 536 (3d Cir. 2012)). Conditional certification
“is only the district court's exercise of [its]
discretionary power . . . to facilitate the sending of notice
to potential class members . . . and is neither necessary nor
sufficient for the existence of a representative action under
FLSA.” Symczyk v. Genesis HealthCare Corp.,
656 F.3d 189, 194 (3d Cir. 2011), rev'd on other
grounds, 569 U.S. 66 (2013). At the second stage, the
final certification stage, the burden on plaintiffs is
heavier, and the court “makes a conclusive
determination as to whether each plaintiff who has opted into
the collective action is in fact similarly situated to the
named plaintiff.” Id. at 193. If plaintiffs
satisfy their burden at the second stage, “the case may
proceed . . . as a collective action.” See id.
case is currently at the first stage-conditional
certification. At this stage, the plaintiff “must
produce some evidence, beyond pure speculation, of a factual
nexus between the manner in which the employer's alleged
policy affected [him] and the manner in which it affected
other employees.” Id. (internal quotation
omitted). In other words, plaintiff cannot make a
“modest factual showing” based “solely on
allegations in the complaint; some factual support must be
provided, such as in the form of affidavits, declarations,
deposition testimony, or other documents.” Drummond
v. Herr Foods Inc., No. 13-5991, 2015 WL 894329, at *2
(E.D. Pa. Mar. 2, 2015) (quoting Anyere v. Wells Fargo
Co., No. 09-2769, 2010 WL 1542180, at *2 (N.D. Ill. Apr.
12, 2010)). This standard is “fairly lenient.”
Camesi, 729 F.3d at 243. The Court does not evaluate
the merits of a case when ruling on a motion for conditional
certification. Titchenell v. Apria Healthcare Inc.,
No. 11-563, 2012 WL 3731341, at *3 (E.D. Pa. Aug. 29, 2012).
seeks conditional certification of a collective class
consisting of “all persons who have worked as a
full-time, hourly-paid Vertical Screen Researcher or Team
Leader during the past three years.” Pl. Mem. Mot. 1.
Plaintiff asserts that the proposed class was subject to two
policies by defendant that violate the FLSA: (1) failure to
pay for time spent logging into defendant's timekeeping
system and (2) shaving one to two unapproved overtime hours
from employees' recorded work time each month.
Id. at 10-12. For the reasons that follow, the Court
concludes that plaintiff has made the requisite modest
factual showing that the proposed collective class is
similarly situated and, therefore, conditionally certifies
the proposed class.
Unpaid Log-In Time
asserts that defendant failed to pay wages for the ten to
fifteen minutes per day that hourly-paid Researchers and Team
Leaders spent logging into the ADP timekeeping system, which