United States District Court, W.D. Oklahoma
DONALD FOUST, on behalf of himself and all other similarly situated individuals, Plaintiff,
(1)CPI SECURITY SERVICES, INC., (2) COMPLETE PROTECTION & INVESTIGATIONS, INC., (3) LAWRENCE E. SANDERS, and (4) CHRISTINE A. SANDERS Defendant.
L. RUSSELLUNITED STATES DISTRICT JUDGE
the Court is Plaintiff's Motion to Conditionally Certify
a Collective Action and for Court-Authorized Notice. Doc. 15.
The matter is fully briefed. For the reasons that follow,
Plaintiff's Motion is GRANTED IN PART and DENIED IN PART.
The Court will conditionally certify a class consisting of
all persons who worked for Defendants as security officers
during the three years before the mailing of the notice and
who were not paid overtime.
Standard for Conditional Class Certification
Donald Foust, challenging Defendants' alleged failure to
pay its employees overtime under the Fair Labor Standards Act
(FLSA), asks the Court to conditionally certify this
collective action. A claim under the FLSA may be brought
“against an employer . . . by any one or more employees
for and on behalf of himself or themselves and other
employees similarly situated.” 29 U.S.C. § 216(b).
Unlike a class action under the Federal Rules of Civil
Procedure 23, to participate in an FLSA collective action,
each plaintiff must “give his consent in writing to
become such a party” and file the consent “in the
court in which such action is brought.” Id.
Plaintiff asks the Court to conditionally certify this case
as a collective action so that putative plaintiffs may
subsequently receive notice and join the action.
FLSA permits a collective action where the complaining
employees are similarly situated. See Id.
Though § 216 (b) does not define that term, the Tenth
Circuit endorses the “ad hoc approach, ” a
two-step process for identifying when a FLSA collective
action may proceed. See Thiessen v. Gen. Elec. Capital
Corp., 267 F.3d 1095, 1102, 1105 (10th Cir. 2001).
first step-where this case is-the Court makes “an
initial ‘notice stage' determination of whether
plaintiffs are ‘similarly situated.'” Here,
plaintiffs need only plead “substantial allegations
that the putative class members were together the victims of
a single policy or plan.” Id. The Tenth
Circuit admits this standard is “fairly lenient.”
Id. at 1103; also see Swartz v. D-J Engineering,
Inc., 2013 WL 5348585, at *1 (D. Kan. Sep. 24, 2013)
(noting that “[t]his standard is very lenient and
typically results in conditional certification”).
second step comes after discovery is complete. Upon a
defendant's motion to decertify, the Court “applies
a stricter standard to assure that plaintiffs are actually
similarly situated.” Swartz, 2013 WL 5348585,
at *1. Here, the Court reviews several factors, such as
“(1) disparate factual and employment settings of the
individual plaintiffs; (2) the various defenses available to
defendant which appear to be individual to each plaintiff;
(3) fairness and procedural considerations; and (4) whether
plaintiffs made the filings required  before instituting
suit.” Thiessen, 267 F.3d at 1103.
Foust filed this FLSA action against his former employers on
behalf of himself and others. Doc. 1. Defendants CPI Security
Services, Inc. and Complete Protection & Investigations,
Inc. are separate legal entities, both operated by husband
and wife Lawrence and Christine Sanders, which provide
security personnel to Oklahoma businesses. Doc. 15, at 7.
While employed by Defendants as security guards, Plaintiff
Donald Foust and opt-in Plaintiff John Sanders (J. Sanders)
allegedly worked more than 70 hours per week without
receiving overtime pay. The FLSA generally requires covered
employers to pay its employees overtime pay for work in
excess of forty hours per week. See Chavez City v. City
of Albuquerque, 630 F.3d 1300, 1304 (10th Cir. 2011).
Employers must compensate employees for overtime hours
“at a rate not less than one and one-half times the
regular rate at which [the employee] is employed.” 29
U.S.C. § 207(a)(1). Defendants allegedly made an end-run
around this regulation by issuing its security guards two
separate paychecks-one from CPI Security Services and one
from Complete Protection & Investigations. Doc. 15, Ex.
3. By doing this, no entity compensated an employee for more
than 40 hours.
the Court is at the “notice stage, ” the question
is simply whether Mr. Foust asserts “substantial
allegations that the putative class members were together the
victims of a single policy or plan.” Thiessen,
267 F.3d at 1102. Here, the Court concludes he has. He
alleges that putative plaintiffs all served as security
guards for Defendants and all shared similar job
responsibilities. They monitored their jobsites'
perimeters, ensured authorized personnel left the premises
safely, and maintained gates and other entries. Apparently
these job responsibilities were consistent across job sites.
Doc 15, Ex. 1; id. at 8. More important to the
Court's analysis on whether plaintiffs were similarly
situated, though, is the allegations of both Mr. Foust and
Mr. J. Sanders that neither received overtime pay despite
working more than forty-hour workweeks and that both received
two paychecks, one from CPI Security Services and one from
Complete Protection & Investigation Services. Doc. 15,
Exs. 1 & 2.
nonetheless, still maintain that plaintiffs have not met
their burden for conditional certification. They argue that
plaintiffs have not produced any evidence that they were all
victims of a single policy or plan; that they have not shown
other employees would want to opt-into the litigation; and
that the potential for individualized defenses for some
plaintiffs means they are not similarly situated. All of
these arguments fail based on the Tenth Circuit's holding
that deciding whether plaintiffs are similarly situated at
the conditional-certification stage “requires nothing
more than substantial allegations that the putative class
members were together the victims of a single decision,
policy, or plan.” Thiessen, 267 F.3d at 1102.
Of course plaintiffs have not produced evidence that
all putative class members were treated similarly, that they
would even want to opt-into this case, or that personalized
defenses will not predominate the case. Their burden to do so
comes later “at the conclusion of discovery” when
the court will “make a second determination,
utilizing a stricter standard of ‘similarly situated,
'” by considering factors such as disparate
employment settings of the individual plaintiffs,
personalized defenses, and fairness and procedural
considerations. Id. at 1103.
also ask this Court to approve a proposed notice to send to
putative plaintiffs. [See Doc. 15, Ex. 4].
Defendants argue the proposed notice is deficient in many
respects. After ...