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Castillo v. P & R Enterprises

October 19, 2007


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


Plaintiffs in this case allege that Defendant P & R Enterprises, Inc. violated the overtime provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216, and the District of Columbia Minimum Wage Act Revision Act, D.C. Code § 32-1012(b), by failing to pay overtime compensation to employees for hours worked in excess of forty per week.*fn1 Before the Court is Plaintiff's [2] Motion for Order Giving Notice to Potential Plaintiff Employees. Upon a review of the Parties' submissions, the applicable case law and statutory authority, the Court shall GRANT IN PART and DENY IN PART Plaintiff's Motion for the reasons set forth below.


Defendant P & R Enterprises, Inc. operates a commercial cleaning company that provides janitorial services to many of the area's largest commercial real estate companies. Compl. ¶ 5. Plaintiffs Carlos Castillo and Carlos Flores (collectively, "Plaintiffs") were employed by Defendant as a Day Cleaner and Day Porter, respectively (the two titles refer to the types of janitorial services they performed). Compl. ¶¶ 11, 13. Plaintiffs were designated by Defendant as non-exempt from the overtime provisions of the Fair Labor Standards Act ("FLSA"), meaning that they were eligible to receive overtime pay for hours worked that exceeded forty per week. Compl. ¶ 17.

Defendant has approximately 760 non-exempt employees performing janitorial work in 61 buildings located in the District of Columbia. Def.'s Opp'n Ex. 1 ¶ 2 (Decl. of Carlos Sanchez). In addition to Day Cleaners and Day Porters, Defendant's employees have job titles corresponding to other cleaning activities, such as Day Maids, Floormen, Vacuum Specialists, among others. Id. ¶ 2. Despite the different titles, these employees share two basic characteristics relevant to the instant motion: they are all responsible for cleaning some portion of the commercial properties to which they are assigned, and they are all classified as non-exempt employees under the FLSA by Defendant. Compl. ¶ 17.

Plaintiffs allege that since June 2004, Plaintiffs worked more than 40 hours per work week but Defendant failed to pay them time-and-a-half compensation for the hours that exceeded 40. Compl. ¶¶ 12, 14. When Plaintiff Castillo allegedly inquired about overtime compensation, Defendant's General Manager Carlos Sanchez told him that Defendant "does not pay overtime to anyone." Pls.' Reply Ex. 1 ¶ 10 (Decl. of Carlos Castillo).

On July 2, 2007, Plaintiffs filed a Complaint in the instant case alleging that Defendant's policies denied them overtime compensation. See Compl. ¶ 18. On July 9, 2007, Plaintiffs filed the instant motion asking the Court for an order authorizing Plaintiffs to give notice of the instant suit to all similarly situated employees of Defendant, to require Defendant to provide Plaintiffs with the names and last known addresses of all similarly situated employees, and to allow notice of this lawsuit to be posted in each of Defendant's workplaces. See Pls.' Mot. at 1.


The FLSA authorizes a plaintiff to challenge the denial of overtime compensation on behalf of himself and any "other employees similarly situated." 29 U.S.C. § 216(b) (2007). This unique cause of action, known as a "collective action," is not subject to the provisions generally associated with class actions under Federal Rule of Civil Procedure 23 (such as numerosity, commonality, and typicality requirements). See Hunter, et al. v. Sprint Corp., 346 F. Supp. 2d 113, 117 (D.D.C. 2004). Although the FLSA authorizes a Plaintiff to proceed as a collective action with similarly situated employees, the class is ultimately formed only by members affirmatively "opting in" to 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.").

Because the statute of limitations continues to run on unnamed class members' claims until they opt in to the collective action, see 29 U.S.C. § 256(b), a court may certify a conditional class of putative plaintiffs prior to discovery upon an initial showing that the members of the class are similarly situated. See Hoffman-LaRoche v. Sperling, et al., 493 U.S. 165, 170 (1989) ("[s]section 216(b)'s affirmative permission for employees to proceed on behalf of those similarly situated must grant the court the requisite procedural authority to manage the process of joining multiple parties in a manner that is orderly, sensible, and not otherwise contrary to statutory commands or the provisions of the Federal Rules of Civil Procedure"); Cryer v. Intersolutions, Inc., Civ. A. No. 06-2032, 2007 U.S. Dist. LEXIS 29339 at *5 (D.D.C. Apr. 7, 2007) ("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"). Once conditionally certified, class members may receive notice alerting them to the collective action and providing them with an opportunity to opt in to the litigation. See Hunter, 346 F. Supp. 2d at 117.

Although the D.C. Circuit has not opined on the steps courts must follow to certify a conditional class under FLSA, courts in this and other districts have generally proceeded in two steps. First, plaintiffs must 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." Chase v. Aimco Props., 374 F. Supp. 2d 196, 200 (D.D.C. 2005) (quoting Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997)). This showing initially fulfills the statutory requirement that the putative class members be similarly situated to plaintiffs.*fn2 See 29 U.S.C. § 216(b) ("other employees similarly situated"). The second of the two steps occurs at the close of discovery, when defendants may move to decertify the conditional class in light of the record developed during the discovery period. See Hunter, 346 F. Sup. 2d at 117. If the Court determines that the class members are similarly situated, then the action may proceed as a collective action. Id. If the court determines that the class members are not similarly situated, then the class is de-certified, and the named plaintiffs proceed with the action in an individual capacity. Id.

The instant motion relates to the first step of the certification analysis. Plaintiffs ask the Court to conditionally certify a class so notice can be sent to putative class members.*fn3 See Pls.' Mot. at 5-6. Plaintiffs further ask the Court to order Defendants to provide the names and addresses of the putative class members to Plaintiffs, and to post notices concerning the collective action in each of its workplaces. Id. at 7-8. Finally, Plaintiffs have submitted a proposed notice to the Court along with its Motion, to which Defendant has raised numerous objections. Id. at 8-9 & Ex. A.

A. Similarly Situated Members

Plaintiffs propose that the Court conditionally certify a member class consisting of "all current and former non-exempt employees of Defendant since July 2004 who are or were classified in the above classifications*fn4 who were not paid time and one-half for all hours worked over 40 hours per week." Pls.' Mot. at 3. Plaintiffs also propose conditional certification for a "subgroup of employees who worked in the District of Columbia and who were deprived of the ...

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