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Thomas v. Walmart, Inc.

United States District Court, E.D. Pennsylvania

December 20, 2019



          BAYLSON, J.

         I. Introduction

         In this putative collective action, Tanielle Thomas (“Plaintiff”) contends that Walmart, Inc. and Sam's West, Inc. (“Defendants”) violated the Fair Labor Standards Act (“FLSA”) and the Pennsylvania Minimum Wage Act (“PMWA”) by maintaining policies and procedures that caused employees to underreport the number of hours they worked, resulting in ineligibility for overtime that the employees otherwise would have qualified for. (ECF 1.) Currently pending before the Court is Plaintiff's Motion for FLSA Conditional Certification. (ECF 16.) For the reasons that follow, Plaintiff's Motion is GRANTED, subject to the modifications of Plaintiff's proposed notice and plan of distribution contained herein.

         II. Procedural History

         Plaintiff filed suit against Defendants on November 1, 2018 alleging that their practices violated the overtime provisions of the FLSA. (ECF 1.) The practices that Plaintiff complains of include: Defendants' routine requests that she report to work early, the electronic time clock's refusal to allow her to punch in prior to her scheduled shift; and Defendants' failure to provide a reliable procedure to ensure tracking of overtime hours.

         On August 30, 2019, Plaintiff moved to conditionally certify a collective class of “all persons who have worked as a full-time, hourly-paid employee in any position or department in the 18 Sam's Club stores in the geographic market where Plaintiff worked (including Delaware, Eastern Maryland, Southern New Jersey and Eastern Pennsylvania) during the past three years” under 29 U.S.C. § 216(b). (ECF 16.) On October 16, 2019, Defendants responded in opposition, (ECF 20), but asked in the alternative that the Court direct Plaintiff and Defendants to meet and confer regarding Plaintiff's proposed notice[1] and plan of distribution, [2] (id. at 20.) Plaintiff replied in support of her Motion on October 25, 2019. (ECF 23.)

         The Court heard argument on Plaintiff's Motion on December 17, 2019. (ECF 26.) The primary points debated at the hearing concerned Defendants' objections to Plaintiff's proposed notice and plan of distribution. Three points were in dispute between the parties: (1) Defendants' request that the proposed notice include contact information for defense counsel; (2) Defendants' objection to Plaintiff's proposal that notice be posted in Defendants' stores; and (3) Defendants' objection to Plaintiff's proposal to send reminder notices to potential collective members during the opt-in period.[3]

         III. Legal Standard

         The FLSA provides federal minimum wage, maximum hour, and overtime protection to employees within its scope. Genesis v. Healthcare Corp. v. Symczyk, 569 U.S. 66, 69 (2013). The FLSA's private enforcement mechanism permits “[a]n action … [to] be maintained against any employer … in any Federal or State court of competent jurisdiction 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). The action authorized by 29 U.S.C. § 216(b)-a collective action-allows a “named employee plaintiff or plaintiffs [to] file a complaint ‘in behalf of' a group of other, initially unnamed employees who purport to be ‘similarly situated' to the named plaintiff.” Halle v. W. Penn Allegheny Health Sys. Inc., 842 F.3d 215, 223 (3d Cir. 2016). The purpose of the collective action mechanism is to afford “plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources.” Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989).

         The Third Circuit applies a two-step analysis in certifying collective actions. Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d 61, 85 (3d Cir. 2017). The first step-conditional certification-requires “the named plaintiffs to make a ‘modest factual showing' 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. (quoting Halle, 842 F.3d at 224). The “sole consequence” of conditional certification is that the court-approved notice is disseminated to collective action members. Genesis, 569 U.S. at 75. After a grant of conditional certification, notice recipients provide written consent to participate in the collective action, [4] and limited certification-related discovery is conducted. Halle, 842 F.3d at 225-26.

         The second step-final certification-is more rigorous and places the burden on the named plaintiffs to “‘show[] that the opt-in plaintiffs are ‘similarly situated' to them for FLSA purposes.'” Karlo, 849 F.3d at 85 (quoting Halle, 842 F.3d at 226). Unlike the conditional certification analysis, the final certification inquiry is not discretionary; rather, if the district court's factual findings establish that the plaintiffs are similarly situated, final certification must be granted. Fiumano v. Metro Diner Mgmt. LLC, No. 17-465, 2018 WL 1726574, at *3 (E.D. Pa. Apr. 10, 2018) (Brody, J.).

         Only the first step of the certification analysis-conditional certification-is at issue here.

         IV. Parties' Arguments

         Plaintiff argues that “her personal experience across two years of employment at Sam's Club, her familiarity with Defendants' policies and practices and her regular interaction with other FLSA Collective members who were subject to the same terms and conditions of employment” establish the modest showing that is required at the conditional certification stage. (ECF 16-2, Plaintiff's Memorandum in Support of Motion for FLSA Conditional Certification (“Plaintiff's Memorandum”) at 12.) Plaintiff's “personal experience” with Defendants' ...

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