ANGELA BLOUNT, et al., for themselves and those similarly situated, Plaintiffs,
U.S. SECURITY ASSOCIATES, et al., Defendants.
JOHN D. BATES, United States District Judge
Plaintiffs Angela Blount, Brian Johnson, Regina Pixley, and Verranda Middleton filed this action on behalf of themselves and others similarly situated against U.S. Security Associates, Inc. ("U.S. Security"), Watkins Security Agency of DC, Inc. ("Watkins DC"), and Watkins Security Agency, Inc. ("Watkins Security Agency"). Plaintiffs are former employees of defendants who worked as security guards in District of Columbia public schools between October 2009 and January 2012. Plaintiffs allege that defendants violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., the D.C. Minimum Wage Act Revision Act ("DCMWA"), D.C. Code §§ 32-1001 et seq., and the D.C. Wage Payment and Collection Law, D.C. Code §§ 32-1301 et seq., by reducing plaintiffs' pay for meal breaks during which plaintiffs were not actually relieved from work.
In June 2012, plaintiffs filed a motion for an order certifying this case as a collective action and providing court-facilitated notice to potential opt-in plaintiffs. See Pls.' Mot. for Certification of Collective Action and Ct.-Facilitated Notice [ECF 4]. Watkins DC and Watkins Security Agency then filed a motion to dismiss and, shortly thereafter, a motion to stay plaintiffs' collective action certification motion until the Court ruled on their motion to dismiss. See Watkins Defs.' Mot. to Dismiss [ECF 9]; Watkins Defs.' Mot. to Stay [ECF 18]. The Court granted the motion to stay. See 8/15/12 Order [ECF 33]. During the stay, plaintiffs filed a number of consent forms signed by individuals who agreed to become party plaintiffs in this case. In March 2013, the Court denied the pending motion to dismiss. See 3/18/13 Mem. Op. & Order [ECF 46]. At that time, the Court also ordered plaintiffs to file an amended motion for certification of collective action and court-facilitated notice, updated to reflect information about the individuals who had opted in since plaintiffs filed their original motion, and ordered U.S. Security and Watkins DC to respond to plaintiffs' amended motion. See 3/18/13 Order [ECF 47].
Now before the Court are  plaintiffs' amended motion for certification of collective action and court-facilitated notice and   motions filed by U.S. Security and Watkins DC seeking to conduct pre-conditional certification discovery. For the reasons set forth below, plaintiffs' motion will be granted in part and denied in part, and defendants' motions will be denied.
Between October 2009 and July 2012, defendants provided security services to about 78 District of Columbia elementary and middle schools. See Compl. [ECF 1] ¶ 19; U.S. Security's Answer [ECF 21] ¶ 20; Pls.' Am. Mot., Ex. D, Decl. of Brian Johnson ("Johnson Decl.") ¶¶ 6-7. These services were provided pursuant to a contract between the District of Columbia and U.S. Security and a subcontract between U.S. Security and Watkins DC. U.S. Security's Answer ¶ 19. Under the subcontract, U.S. Security was responsible for providing guards at 46 of the schools, and Watkins DC was responsible for providing guards at the remaining 32 schools. See id. ¶ 20. U.S. Security employed between 113 and 165 guards; Watkins DC employed about 95 guards. Johnson Decl. ¶¶ 6-7; Johnson-Waller Decl. ¶ 10.
Plaintiffs worked as security guards for either U.S. Security or Watkins DC. Plaintiffs Blount, Johnson, and Pixley worked for U.S. Security and seek to represent themselves and other similarly situated employees of U.S. Security. Compl. ¶ 21. Plaintiff Middleton worked for Watkins DC and seeks to represent herself and other similarly situated employees of Watkins DC. Id. ¶ 22. According to plaintiffs, the employment and payroll policies of the two defendants were identical in all respects relevant to this action. See id. ¶¶ 23, 27-28. Defendants assigned guards to work at one or more of the schools under contract. E.g., Pls.' Am. Mot., Ex. C, Decl. of Angela Blount ("Blount Decl.") ¶ 2; id., Ex. E, Decl. of Regina Pixley ("Pixley Decl.") ¶ 2; id., Ex. F, Decl. of Verranda Middleton ("Middleton Decl.") ¶ 2. The guards had similar job duties, regardless of the schools to which they were assigned. See Compl. ¶ 23; U.S. Security's Answer ¶¶ 24-25. These duties included securing school facilities, providing protection to faculty and students, patrolling school buildings and grounds, controlling school access points, monitoring visitors, responding to calls for assistance, and maintaining daily patrol logs and incident reports. E.g., U.S. Security's Answer ¶¶ 24-25; Blount Decl. ¶ 4; Middleton Decl. ¶ 5; Pls.' Am. Mot., Ex. G, Decl. of Alfreda Bacon ("Bacon Decl.") ¶ 4; id., Ex. I, Decl. of Ernestine Davis-Blair ("Davis-Blair Decl.") ¶ 4.
At issue in this lawsuit is defendants' alleged policy of automatically deducting guards' pay for "meal breaks." Plaintiffs allege that this policy was unlawful because during these purported meal breaks plaintiffs were required to remain on school grounds, be "at the ready, " monitor their radios, and attend to any contingencies that arose. See Compl. ¶¶ 25-26, 28. Plaintiffs have submitted declarations from the four named plaintiffs and most of the opt-in plaintiffs to support their allegations about defendants' meal break policy. The declarations state that both U.S. Security and Watkins DC automatically deducted thirty minutes worth of pay per shift worked to account for unpaid thirty-minute meal breaks, but that during these meal breaks, guards were forbidden from leaving school grounds, were required to carry a radio, and had to be ready to respond to calls for assistance. E.g., Blount Decl. ¶¶ 9-10, 12-13, 16-17; Middleton Decl. ¶¶ 9-11, 13-14, 17-18; Davis-Blair Decl. ¶¶ 6-8, 11-14 (guard told that she could be "disciplined" for leaving school for any reason); Pls.' Am. Mot., Ex. J, Decl. of Eyona Fountain ¶¶ 6-8, 10, 13-14. The declarations also describe how individual guards were affected by defendants' meal break policy. Some guards, for example, report that their meals breaks were interrupted nearly every day, e.g., Blount Decl. ¶ 15, while others report that their meal breaks were interrupted an average of two to three times per week, e.g., Pixley Decl. ¶ 14.
Plaintiffs' position is that the meal break policy in question applied at all seventy-eight schools at which defendants provided security services and was administered through a centralized payroll system. See Compl. ¶ 27; Pls.' Am. Mot. 5; id., Ex. VV, Declaration of Jon Worley. Plaintiffs assert that the policy was in place from October 2009, when the guards began working for defendants and were informed of the policy at an orientation, to January 2012, when defendants changed the policy such that guards could leave their assigned schools during meal breaks. See Pls.' Am. Mot. 6; see also, e.g., Blount Decl. ¶ 3, 14; Middleton Decl. ¶¶ 4, 14-15. The guards were informed of the policy change at different times. E.g., Blount Decl. ¶ 14 (informed in January 2012); Middleton Decl. ¶ 15 (informed in February 2012); Bates Decl. ¶ 12 (informed in March 2012).
The FLSA and the DCMWA authorize an employee to sue her employer on behalf of herself and other employees who are "similarly situated." 29 U.S.C. § 216(b); D.C. Code § 32-1012(b). This type of action, known as a "collective action, " is not subject to the numerosity, commonality, and typicality requirements of a class action under Federal Rule of Civil Procedure 23. See Hunter v. Sprint Corp., 346 F.Supp.2d 113, 117 (D.D.C. 2004). Instead, "a collective action has only two threshold requirements: the plaintiff must show that she is similarly situated to the other members of the proposed class, and those other members must 'opt in' to the proposed class." Id.
To determine whether a collective action class should be certified, courts typically proceed in two stages. At the first stage, the 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." Id. (internal quotation marks omitted); accord Dinkel v. MedStar Health, Inc., 880 F.Supp.2d 49, 52 (D.D.C. 2012). If the plaintiffs can make this initial showing, then the Court may conditionally certify the class and may facilitate notice of the collective action to potential plaintiffs to give them an opportunity to opt in to the litigation. See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170-72 (1989); Hunter, 346 F.Supp.2d at 117. The case then proceeds as a representative action through discovery. Hunter, 346 F.Supp.2d at 117.
The second stage occurs at the close of discovery, at which time the defendant may move to decertify the class based on the evidentiary record developed during the discovery period. Id. The Court makes a factual determination whether the plaintiffs who have opted in are in fact "similarly situated" to the named plaintiffs. See id.; Dinkel, 880 F.Supp.2d at 52. If the Court determines that the putative class members are similarly situated, then the collective action proceeds to trial; if the Court determines that the putative class members are not similarly situated, then the class is ...