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Garcia v. Vertical Screen, Inc.

United States District Court, E.D. Pennsylvania

July 22, 2019

WILLIAM GARCIA, for himself and all others similarly situated, Plaintiff,
v.
VERTICAL SCREEN, INC., Defendant.

          MEMORANDUM

          DuBOIS, JUDGE.

         I. INTRODUCTION

         This is 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.

         Presently 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.

         II. BACKGROUND

         Defendant 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.

         Plaintiff 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.

         In 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.

         On 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 No. 21).

         On May 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.

         III. LEGAL STANDARD

         Employees 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).

         Courts 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.

         This 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).

         IV. DISCUSSION

         A. Conditional Certification

         Plaintiff 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.

         1. Unpaid Log-In Time

         Plaintiff 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 added ...


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