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.

Goode v. Nuance Communications, Inc.

United States District Court, N.D. Oklahoma

July 23, 2018

JENNIFER GOODE and KANDI FREY, individually, and on behalf of all others similarly situated, Plaintiffs,
v.
NUANCE COMMUNICATIONS, INC. and NUANCE TRANSCRIPTION SERVICES, INC., Defendants.

          OPINION AND ORDER

          Gregory K. Frizzell, Judge

         This matter comes before the court on the Motion for Conditional Collective Action Certification and Court-Authorized Notice [Doc. No. 44] of plaintiffs Jennifer Goode and Kandi Frey, individually and on behalf of all others similarly situated. For the reasons set forth below, the motion is granted in part and denied in part.

         I. Background

         Plaintiffs and members of the putative collective are current and/or former non-exempt medical transcriptionists, or medical language specialists (“MLS employees”), employed by Nuance Transcription Services, Inc., a wholly owned subsidiary of Nuance Communications, Inc. Plaintiffs filed this lawsuit alleging that defendants violated the Fair Labor Standards Acts, 29 U.S.C. §§ 203 et seq., by failing to pay MLS employees for rest periods, resulting in an improper reduction of overtime pay for MLS employees who worked over forty hours in a workweek and remained clocked in for rest periods, and failing to pay overtime wages to MLS employees who clocked out for rest periods but worked forty hours in a workweek, including rest periods. Additionally, plaintiffs assert FLSA violations for defendants' failure to timely pay promised incentives to MLS employees and to include the incentives when determining overtime pay.

         Based on these allegations, plaintiffs ask the court to certify a collective action under § 216(b) FLSA and to facilitate notice to potential collective members. To that end, plaintiffs propose the following collective definitions:

Current and former MLS employees of Defendants who worked at any time during the time period from three (3) years before the filing of the original Complaint (i.e., Aug. 25, 2014) to present:
1. Who were not compensated for rest periods and worked more than 40 hours in a workweek when the rest periods are included;
AND/OR
2. Who worked more than 40 hours in a workweek, inclusive of rest periods, and earned incentives during such workweeks that were not calculated into the overtime rate and/or were not paid on the regularly scheduled payroll date after the incentives were earned.

[Doc. No. 44, p. 8].[1] In addition to named plaintiffs Jennifer Goode and Kandi Frey, two other individuals have elected to join the collective by filing their Notice of Consent to Join FLSA Action in this court-Lorraine Long and Elaina Rand. See [Doc. No. 24].

         II. Conditional Certification Standard

         Section 216(b) of the Fair Labor Standards Act permits collective actions brought for and in behalf of similarly situated employees:

An action to recover the liability prescribed in the preceding sentences may be maintained against any employer (including a public agency) 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. No employee shall be a party plaintiff to any such action 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.

29 U.S.C. § 216(b). The FLSA does not define “similarly situated.” However, the Tenth Circuit previously endorsed the two-step ad hoc method of determination. See Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1105 (10th Cir. 2001); Chapman v. BOK Fin. Corp., No. 12-CV-613-GKF-PJC, 2013 WL 12032545, at *2 (N.D. Okla. Apr. 30, 2013).

         Pursuant to the ad hoc approach, a court first “makes an initial ‘notice stage' determination of whether plaintiffs are ‘similarly situated[.]'” Thiessen, 267 F.3d at 1102. During this first stage, a finding of “similarly situated, ” “require[s] nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Id. (quoting Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 678 (D. Colo. 1997)). Generally, district courts in this Circuit have limited the scope of their review at the notice stage of certification to the allegations in plaintiffs' complaint and supporting affidavits. Shockey v. Huhtamaki, Inc., 730 F.Supp.2d 1298, 1303 (D. Kan. 2010); Smith v. Pizza Hut, Inc., No. 09-CV-01632-CMA-BNB, 2012 WL 1414325, at *3 (D. Colo. Apr. 21, 2012). “In reviewing a motion for conditional certification, the court does not weigh the evidence, resolve factual disputes, or rule on the merits of Plaintiff's claims.” Kuri v. Addictive Behavioral Change Health Grp., LLC, No. 16-CV-2685-JAR-JPO, 2017 WL 5273736, at *2 (D. Kan. Nov. 13, 2017) (internal footnotes omitted).

         The court then moves to the second stage. During this second stage, “[a]t the conclusion of discovery (often prompted by a motion to decertify), the court then makes a second determination, utilizing a stricter standard of ‘similarly situated.'” Thiessen, 267 F.3d at 1102-03. Pursuant to this stricter analysis, “a court reviews several factors, including ‘(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 by the [FLSA] before instituting suit.” Id. at 1103.

         III. Collective Actions Allegations

         This case is at the initial notice stage, and therefore the court need only consider whether substantial allegations exist that the putative collective members were “victims of a single decision, policy, or plan.” Thiessen, 267 F.3d at 1102. The Second Amended Complaint, the operative pleading in this matter, and the declarations of the four “opt-in” plaintiffs-Kandi Frey (Doc. No. 44-1); Lorraine Long (Doc. No. 44-2); Jennifer Goode (Doc. No. 44-3); and Elaina Rande (Doc. No. 44-4)-collectively allege as follows:

         Nuance pays MLS employees based on the number of lines of dictation, and the accuracy thereof, that an MLSA employee transcribes in a given week. [Doc. No. 29, ¶ 34]. At times during the collective action period, Nuance required that MLS employees take two fifteen-minute rest periods during the course of any shift over six hours long. [Doc. No. 29, ¶ 35; Doc. No. 44-1, ¶ 3; Doc. No. 44-2, ¶ 4; Doc. No. 44-3, ¶ 4; Doc. No. 44-4, ¶ 4]. The policy required Nuance to pay MLS employees for the rest breaks. [Id.]. Nuance also failed to timely pay MLS employees promised incentives. [Doc. No. 29, ¶ 44]. Specifically, Nuance implemented a policy pursuant to which, for the week ending July 7, 2017, pay for the first eight hours worked daily would be made “at 1.5 X hours worked X AHR, ” pay for hours worked daily in excess of eight hours would be made at “2.0 X hours worked X AHR, ” and an additional $1, 000 bonus would be given to employees who had at least forty productive hours within five consecutive days as of July 8. [Doc. No. 29, ¶ 44; Doc. No. 44-1, ¶¶ 5-7; Doc. No. 44-2, ¶¶ 6-7; Doc. No. 44-3, ¶¶ 5-6].

         Frey specifically alleges she has been employed with Nuance since August 14, 2007, as a “remote” MLS employee. [Doc. No. 44-1, ¶ 2]. Nuance did not pay Frey for the rest breaks and, further, included the rest breaks when calculating her line count per hour, decreasing the amount she was paid. [Id. ¶ 3]. During her employment with Nuance, Frey worked in excess of forty hours per week, and therefore the unpaid rest breaks constitute unpaid overtime hours. [Id. ¶ 4]. Additionally, during the week of July 1-7, 2017, Frey worked in excess of forty hours, including working more than eight hours on several individual workdays. However, defendants failed to pay the promised incentives and also failed to properly calculate her overtime rate by excluding the incentive payments. [Id. ¶ 6]. During the week of July 8-14, 2017, Nuance failed to pay Frey the promised incentive payments. [Id. ¶ 7].

         Long specifically alleges the following: Long worked for Nuance as a “remote” MLS employee from August 5, 2015 to September 12, 2017. [Doc. No. 44-2, ¶¶ 1-3]. During her employment, defendants did not pay Long for her rest breaks as required by company policy and, further, included the rest breaks when calculating her line count per hour, decreasing the amount she was paid. [Id. ¶ 4]. Long worked in excess of forty hours per week on numerous occasions, and therefore the unpaid rest breaks constitute unpaid overtime hours. [Id. ...


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.