United States District Court, N.D. Oklahoma
JENNIFER GOODE and KANDI FREY, individually, and on behalf of all others similarly situated, Plaintiffs,
NUANCE COMMUNICATIONS, INC. and NUANCE TRANSCRIPTION SERVICES, INC., Defendants.
OPINION AND ORDER
Gregory K. Frizzell, Judge
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.
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
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
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]. 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].
Conditional Certification Standard
216(b) of the Fair Labor Standards Act permits collective
actions brought for and in behalf of similarly situated
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).
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).
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.
Collective Actions Allegations
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
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].
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].
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. ...