The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
The plaintiffs in this case allege that defendants InterSolutions, Inc., Drew Golin and Sarah Walder violated the overtime provisions of the Fair Labor Standards Act ("FLSA") and Maryland Statutory law by failing to pay time and a half to hourly-paid employees for hours worked in excess of forty hours per week. Pending before the Court is plaintiffs' Motion for Conditional Class Certification, Issuance of Notice, and Order for Certain Discovery.*fn1 Upon review of the motion, response and reply thereto, and the applicable law, plaintiffs' motion is granted subject to the specific instructions provided by the Court in this Memorandum Opinion and the Order accompanying this Memorandum Opinion.
Plaintiffs Chanel Cryer, James Byrd, Jonathan Cashwell, and Marc Inman all worked for InterSolutions between 2003 and the present. InterSolutions provides staffing for concierge, leasing, and maintenance services to residential and commercial properties in the District of Columbia, Maryland, Virginia, and Pennsylvania.
Plaintiffs allege that defendants refused to pay overtime to its temporary, hourly-paid employees and that this conduct affected a sizeable percentage of the approximately 400 temporary employees during the relevant time period. Specifically, plaintiffs allege that defendants either refused to pay overtime pay at all, paid employees their regular rate of pay for all hours worked in excess of forty hours in a week, or paid employees at a rate higher than their regular rate of pay for hours worked in excess of forty hours in a week, but not one-anda-half times the employees' rate of pay. Plaintiffs also allege that InterSolutions knew that it owed employees overtime because the overtime obligations were stated in its employee handbook. Finally, plaintiffs allege that InterSolutions intentionally withheld overtime pay from employees and repeatedly and willfully misrepresented its overtime obligations to its employees during new hire orientations and in response to complaints from employees about their unpaid overtime.
On February 16, 2007, plaintiffs filed their Motion for Conditional Class Certification, Issuance of Notice, and Order for Certain Discovery. In that motion, plaintiffs ask the Court to conditionally certify a class of "all persons who are or have been employed by InterSolutions as temporary employees and who worked more than forty (40) hours during any given work week between November 29, 2003 and the present. Plaintiffs also ask the Court to authorize notice of the action to all members of the above-described class. Further, plaintiffs seek an order from the Court directing defendants to produce to plaintiffs the names and last known addresses of all current and former temporary employees, dating back three years from November 29, 2006.
The FLSA provides a mechanism for a plaintiff to pursue a collective action for the denial of overtime compensation on behalf of herself and "other employees similarly situated." 29 U.S.C. § 216(b). The scope of a collective action for overtime pay is limited, however, in that putative class members must affirmatively opt in to the action in order to become part of the lawsuit. See 29 U.S.C. § 216(b) ("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."). Moreover, the statute of limitations continues to run on unnamed class members' claims until they opt in to the action. See 29 U.S.C. §§ 216(b), 256.
A. Conditional Class Certification
Because of the time-sensitive nature of the opt-in requirements for potential class members, this Court and other courts have adopted a conditional certification process, whereby a court may conditionally certify the collective action class early in the litigation upon an initial showing the members of the class are similarly situated and then may later revisit the certification as the case develops. See, e.g., Hunter, et al. v. Sprint Corp., 346 F. Supp. 2d 113 (D.D.C. 2004); Robinson-Smith, et al. v. GEICO, 2001 U.S. Dist. LEXIS 25516 (D.D.C. Nov. 16, 2001). At the first stage of this two-tiered approach, plaintiffs need only make a "modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law." Hunter, 346 F. Supp. 2d at 117 (citation and internal quotation marks omitted). This determination is made based solely on the pleadings and affidavits. See Hoffman v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997). If the plaintiffs are able to make this initial showing, the class is "conditionally certified" and members of the class are given notice of the collective action and an opportunity to opt in to the litigation. Hunter, 346 F. Supp. 2d at 117. The action then proceeds as a "representative action" throughout discovery. Id.
The second step of the analysis begins at the close of discovery. At that point, the defendant may move to decertify the class in light of the record developed during discovery. Id. The Court then makes a factual finding as to whether the proposed class members are in fact similarly situated. Id.
In this case, plaintiffs, through their pleadings and evidence submitted in support of their motion, have sufficiently demonstrated that potential members of the class are similarly situated enough for the Court to conditionally certify the class. All potential class members were or are temporary hourly-paid employees of InterSolutions who were allegedly entitled to overtime pay for hours worked in excess of forty hours in a given work week. All potential class members were allegedly denied full overtime pay when they worked more than forty hours per week. Moreover, plaintiffs allege that InterSolutions' failure to pay overtime was willful and systematic.
In support of their motion for conditional certification, plaintiffs obtained declarations from individual employees who state that they worked more than forty hours in a given week for InterSolutions and were not paid overtime. See Inman Decl. ¶¶ 5-6; Jones Decl. ¶¶ 5-6. These employees also allege that they complained about not being paid overtime and were told that InterSolutions did not pay overtime to employees unless employees worked more than forty hours a week at a single client site. See Inman Decl. ¶ 7; Jones Decl. ¶ 7. Plaintiffs also obtained a declaration from Linda Green, a former manager of the concierge division at InterSolutions. Green alleges that she received complaints from an estimated one to two dozen different employees, with some complaining multiple times, about InterSolutions' failure to pay overtime. See Green Decl. ¶ 12. Green also indicates that she brought these complaints to the attention of management. Id. ¶¶ 14-15. In addition to the declarations, plaintiffs also submitted pay stubs from several employees and a copy of InterSolutions employee handbook. This evidence in connection with plaintiffs' ...