United States District Court, District of Columbia
TANYA S. CHUTKAN, United States District Judge
Plaintiffs Alex Rivera, Medardo Escobar, Jenry Escobar, Alfonso Escobar and Emerson Lopez (the “Named Plaintiffs”) were employed as electricians on a condominium development project at 460 New York Avenue N.W. in Washington, D.C. (the “Project”) in December 2014. (See Amended Collective and Class Action Complaint (ECF No. 1-2 at ECF pp. 9-24) (the “Amended Complaint”) ¶¶ 4, 7, 10, 13, 16). They have brought claims against their alleged joint employers - Defendants Power Design, Inc., E.A. Electric, LLC and Emerson Alvarado - on behalf of themselves and others similarly situated, under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (the “FLSA”), the D.C. Minimum Wage Act, D.C. Code § 32-1001, et seq. (the “DCMWA”), the D.C. Wage Payment Collection Law, D.C. Code § 32-1301, et seq., and the Workplace Fraud Act, D.C. Code § 32-1321.01, et seq. The Named Plaintiffs allege that they were not paid the D.C. or federal minimum wage or overtime for approximately one month of work performed for the Defendants on the Project. (Am. Compl. ¶¶ 29, 39-44, 51-53, 67-68).
The Named Plaintiffs’ Motion for Conditional Certification of Collective Action and to Facilitate Notice (the “Motion”) requests that the court conditionally certify this case as a collective action pursuant to the FLSA, 29 U.S.C. § 216(b), and the DCMWA, former D.C. Code § 32-1012(b), on behalf of “all nonexempt employees who performed construction duties for Power Design at the [Project] from April 2012 to the final disposition of this action.” (Motion at 1). The Named Plaintiffs also request that the court facilitate notice to all such persons of their rights to join in this case. (Id.).
Upon consideration of the Motion and supporting memorandum, Power Design’s opposition thereto, and the Named Plaintiffs’ reply in support thereof, and for the reasons set forth below, the Named Plaintiffs’ Motion is hereby GRANTED IN PART and DENIED IN PART.
I. FACTUAL AND PROCEDURAL BACKGROUND
a. Factual Background
The Named Plaintiffs allege that Defendants employed them as electricians on the Project in December 2014. (See Am. Compl. ¶¶ 4, 7, 10, 13, 16). Power Design asserts that while it served as an electrical installation subcontractor on the Project, it also subcontracted certain electrical installation work on the Project out to several of its own subcontractors, including E.A. Electric. (See Opp’n at 1). Power Design also asserts that the Named Plaintiffs worked for E.A. Electric and its owner, Emerson Alvarado, not for Power Design itself. (See Id. at 1, 6).
The Named Plaintiffs allege, however, that Power Design used E.A. Electric as a “labor-only broker, ” and that Power Design was their joint employer along with E.A. Electric and Alvarado, citing Power Design’s “activities at the Project and its control over workers hired by its labor brokers.” (Reply at 2). The Named Plaintiffs allege, for example, that (i) Power Design provided all instructions to them, with an E.A. Electric employee serving only to translate the instructions from English to their native Spanish; (ii) they were required to sign in and out each day on Power Design timesheets; and (iii) they were required to wear safety equipment with Power Design’s logo. (See Id. at 2-3 (citing Am. Compl. ¶¶ 32-33)).
The Named Plaintiffs also allege that (i) they observed between ten and fifteen other workers performing similar work on the Project while they were there (see Mot. Exs. 1-5 (Declarations of Each Named Plaintiff) ¶ 10); (ii) a Power Design supervisor closely monitored and directed the work of these individuals, all of whom also recorded their hours on Power Design timesheets (see Am. Compl. ¶¶ 32, 36); and (iii) about five of these individuals stated that they had not received the pay they had been promised (see Mot. Ex. 3 (Declaration of Jenry Escobar) ¶ 10).
b. Procedural Background
The Named Plaintiffs filed their initial complaint against the Defendants in the Superior Court of the District of Columbia in April 2015. (See Complaint for Unpaid Wages (the “Initial Complaint”)). The Initial Complaint alleged that the Defendants violated the DCMWA and the D.C. Wage Payment Collection Law in failing to pay the Named Plaintiffs for work they performed on the Project, and requested relief including $11, 040 in unpaid wages and $33, 120 in liquidated damages. (See id.).
On May 13, 2015, the Named Plaintiffs filed an Amended Complaint in Superior Court, adding claims for violation of the FLSA and the Workplace Fraud Act. (See Am. Compl. ¶¶ 46-56, 70-75). They also restyled their action as, inter alia, one brought on behalf of themselves and putative FLSA and DCMWA opt-in collectives under 29 U.S.C. § 216(b) and D.C. Code § 32-1012(b). (See Id. ¶¶ 22-26). Putative plaintiffs were alleged to include individuals who performed construction duties for Power Design at the Project from April 2012 to the final disposition of this action, who were similarly undercompensated for their work. (See Id. ¶¶ 22-23).
In June 2015, Power Design, with the consent of E.A. Electric and Alvarado, removed this action to federal court pursuant to 28 U.S.C. § 1441(c) on the ground that the addition of the FLSA claim conferred jurisdiction upon this court pursuant to 28 U.S.C. § 1331. (See Notice of Removal ¶¶ 5, 10).
In July 2015, the Named Plaintiffs filed a status report informing this court that they had settled with E.A. Electric and Alvarado while the case was still in Superior Court. The court dismissed the action with prejudice against E.A. Electric and Alvarado the day after the status report was filed.
In August 2015, the Named Plaintiffs filed the instant Motion, requesting the court to conditionally certify this case as a collective action pursuant to the FLSA, 29 U.S.C. § 216(b), and the DCMWA, former D.C. Code § 32-1012(b). Specifically, the Named Plaintiffs seek conditional certification on behalf of “all nonexempt employees who performed construction duties for Power Design at the [Project] from April 2012 to the final disposition of this action.” (Mot. at 3). The Named Plaintiffs also request that the court facilitate notice to all such persons of their rights to join in this case. (See id.).
Power Design opposes conditional certification on numerous grounds. First, it argues that the Named Plaintiffs’ allegations that they are similarly situated to the putative plaintiffs (i) are conclusory and insufficient; (ii) fail to provide sufficient evidence that putative plaintiffs even exist; and (iii) overlook the fact that the Named Plaintiffs received the wages at issue in this action via their settlement with E.A. Electric and Alvarado, while the putative plaintiffs have not. Second, Power Design argues that it was not the Named Plaintiffs’ or the putative plaintiffs’ employer-in-fact. Third, Power Design asserts that it is not capable of providing the requested notice to putative class members because it does not have their names and last known addresses.
II. FLSA CERTIFICATION
The FLSA requires employers to pay minimum wage for compensable working time and an overtime premium for compensable hours worked in excess of forty hours per week. See 29 U.S.C. §§ 206, 207. The FLSA contemplates what is commonly referred to as a “collective action, ” in which named plaintiffs bring claims on behalf of other “similarly situated” employees who become part of the action only upon filing a written consent:
An action . . . may be maintained against any employer . . . by any one or more employees for and [o]n 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). “With collective actions, district courts have considerable discretion in managing the process of joining similarly situated employees in a manner that is both orderly and sensible.” Dinkel v. Medstar Health, Inc., 880 F.Supp.2d 49, 52 (D.D.C. 2012); see also Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989).
Federal courts typically engage in a two-stage inquiry when evaluating whether an FLSA claim should proceed as a collective action. See Dinkel, 880 F.Supp.2d at 52. “At the first stage, often loosely referred to as ‘conditional certification, ’ the named plaintiffs must present some evidence, beyond pure speculation, of a factual nexus between the manner in which the employer’s alleged policy affected [them] and the manner in which it affected other employees.” Id. at 53 (quotation and citation omitted); see also Eley v. Stadium Grp., LLC, No. 14-cv-1594 (KBJ), 2015 WL 5611331, at *1 (D.D.C. Sept. 22, 2015). Put differently, “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.’” Blount v. U.S. Sec. Assocs., 945 F.Supp.2d 88, 92 (D.D.C. 2013) (quoting Hunter v. Sprint Corp., 346 F.Supp.2d 113, 117 (D.D.C. 2004)). This showing “has been described as ‘not particularly stringent, fairly lenient, flexible, [and] not heavy.’” Dinkel, 880 F.Supp.2d at 53 (alteration in original) (quoting Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1261 (11th Cir. 2008)) (quotation omitted). This showing may also “be satisfied based on pleadings and affidavits.” Blount, 945 F.Supp.2d at 93.
If the named plaintiffs make the required showing, then a court “may conditionally certify the class and may facilitate notice of the collective action to potential plaintiffs to give them the opportunity to opt in to the litigation.” Id. at 92. The case then ...