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Vasquez v. Grunley Construction Co. Inc.

United States District Court, District of Columbia

August 2, 2016




         This case was referred to this Court for all purposes. Currently ripe is Plaintiffs’ motion for conditional certification of a collective action under the D.C. Minimum Wage Revision Act (“DCMWRA”), D.C. Code § 32-1001 et seq. After reviewing the entire record, [1] the Court will deny the motion.


         The Court explained the facts of this case in a prior opinion. Vasquez v. Grunley Constr. Co., Case No. 15-cv-2106 (GMH), 2016 WL 1559131 (D.D.C. Apr. 18, 2016). The Court will recount here only the facts pertinent to the adjudication of Plaintiffs’ motion. Plaintiffs are a group of carpenters who worked on a large-scale renovation project at the Watergate hotel in Washington, D.C. Amended Complaint [Dkt. 1] ¶ 20. Defendant Grunley Construction was the general contractor on the project. Id. ¶ 22. Defendant C.R. Calderon Construction was a carpentry subcontractor, and Defendant Garfias Drywall & Finish was an unlicensed labor recruiter that recruited Plaintiffs for Calderon. Id. ¶¶ 1, 12. Plaintiffs allege that none of the defendants ever paid them for their work. Id. ¶¶ 24, 34.

         Plaintiff Vasquez originally brought claims against all Defendants under: (1) the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq.; (2) the DCMWRA, D.C. Code § 32-1001 et seq.; (3) the District of Columbia Wage Payment and Collection Law, D.C. Code § 32-1301 et seq.; and (4) the District of Columbia Wage Theft Prevention Amendment Act, D.C. Code §§ 32-1001-15, 32-1301-11. Id. ¶¶ 44-62. He also sought to bring his FLSA and DCMWRA claims on behalf of himself and others similarly situated as a collective action. Id. ¶ 35; see also 29 U.S.C. § 216(b); D.C. Code § 32-1308(a)(1).

         On March 7, 2016, Plaintiff Vasquez moved for conditional certification of collective actions under both the FLSA and DCMWRA. Plaintiff’s Motion to Certify Class [Dkt. 26]. On April 18, 2016, the Court granted that motion in part. Vasquez, 2016 WL 1559131, at *4. The Court granted conditional certification of the following collective action under the FLSA:

All non-exempt employees who performed carpentry work at the Watergate hotel renovation at 2650 Virginia Avenue, N.W., Washington, D.C., for Garfias Drywall & Finish, LLC and C.R. Calderon Construction, Inc., from August 2015, until the final disposition of this action.


         The Court denied without prejudice the motion to conditionally certify the DCMWRA collective action, however. Id. As explained in that opinion, the DCMWRA previously mirrored the language in the FLSA that provides for collective action based on the written consent of each class member to opt in to the suit. Id. That language was removed from the statute in amendments to the DCMWRA enacted in early 2015, long before the conduct at issue in this case. Id. Without that language, the Court noted that group actions under the DCMWRA may now more closely resemble traditional, opt-out class actions under Federal Rule of Civil Procedure 23. Id. Plaintiff did not argue that certification of the DCMWRA claim was appropriate under Rule 23, and he did not give any reasons why, in light of the amendments to the DCMWRA, the Court should still treat the statute as providing for collective actions like the FLSA. Id. The Court therefore denied the motion but permitted Plaintiffs to address the Court’s concerns in a renewed motion.

         Plaintiffs filed that motion on May 20, 2016. Defendant Grunley responded on June 10, 2016, and Defendant Calderon responded on June 15, 2016. Plaintiffs replied on June 16, 2016, and so the motion is ripe for disposition.


         In their motion, Plaintiffs ask the Court to conditionally certify under the DCMWRA the same collective action it has already conditionally certified under the FLSA. Mot. at 1. The issue before the Court, however, is not whether conditional certification is appropriate on these facts. The Court has already concluded that it is. Vasquez, 2016 WL 1559131, at *4. The only question presented now is whether the 2015 amendments to the DCMWRA removed collective actions as an avenue for bringing group claims, leaving DCMWRA plaintiffs the ability to pursue such claims solely under the traditional class-action procedures in Rule 23.[2] Because the motion rests in large part on the important differences between the FLSA and Rule 23, the Court will briefly explain how Rule 23 class actions and FLSA collective actions work before turning to Plaintiffs’ motion.

         A. Rule 23 Class Actions and FLSA Collective Actions

         Both the FLSA and the DCMWRA require employers to pay their workers a minimum wage and, if the employee works more than forty hours in a workweek, overtime compensation. 29 U.S.C. § 207(a)(1); D.C. Code § 32-1003. Both statutes also permit claims to be brought on behalf of a group of workers. 29 U.S.C. § 216(b); D.C. Code § 32-1308(a)(1); see also D.C. Code § 32-1012(a) (“A civil action [under the DCMWRA] may be commenced according to § 32-1308.”). Under the FLSA, such actions are called “collective actions” and are subject to more lenient certification rules than those applicable to typical Rule 23 class actions. Hunter v. Sprint Corp., 346 F.Supp.2d 113, 117 (D.D.C. 2004); Bouaphakeo v. Tyson Foods, Inc., 564 F.Supp.2d 870, 887 (N.D. Iowa 2008) (“Despite their confusing semantic similarities, the differences between class actions and collective actions are great.”). Rule 23 class actions require the plaintiff to demonstrate that (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a). Additionally, a prospective Rule 23 class representative must also satisfy one of the three requirements of Rule 23(b), i.e., that prosecuting separate actions would create a risk of inconsistent adjudications; that injunctive or declaratory relief is appropriate; or that common questions of law or fact predominate and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Id. 23(b).

         “The Federal Rules of Civil Procedure, including Rule 23 authorizing class actions, apply in all civil actions except when Congress has decided otherwise.” 5 Moore’s Federal Practice § 23.04 (3d ed. 2007) (citing Fed.R.Civ.P. 1; Califano v. Yamasaki, 442 U.S. 682, 700 (1979)); Shady Grove Orthopedic Assoc., P.A. v. Allstate Ins. Co., 559 U.S. 393, 400 (2010) (“[L]ike the rest of the Federal Rules of Civil Procedure, Rule 23 automatically applies ‘in all civil actions and proceedings in the United States district courts.’”) (quoting Fed. Rule Civ. P. 1) (emphasis in original). Congress did just that in the FLSA when it provided an “alternative means for obtaining class or group relief.” See 5 Moore’s Federal Practice § 23.04; 29 U.S.C. § 216(b). An FLSA collective action, unlike a Rule 23 class action, is not subject to the numerosity, commonality, and typicality requirements of Rule 23. Hunter, 346 F.Supp.2d at 117. “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.

         In addition to the requirements for certification, the crucial difference between class and collective actions is Rule 23’s opt-out procedure and the opt-in procedure used in collective actions. In Rule 23 class actions, persons who meet the class definition are automatically joined, and are subject to all the principles of preclusion that come with participation in the case, unless they affirmatively opt out. See Alvarez v. City of Chicago, 605 F.3d 445, 448 (7th Cir. 2010); McElmurry v. U.S. Bank Nat’l Assoc., 495 F.3d 1136, 1139 (9th Cir. 2007). In FLSA collective actions, on the other hand, “no employee shall be a party plaintiff . . . unless he gives his consent in writing and such consent is filed in the court.” 29 U.S.C. § 216(b). “This opt-in language was added by Congress in order to limit the number and type of plaintiffs who could join collective actions.” Chase v. AIMCO Properties, L.P., 374 F.Supp.2d 196, 199 (D.D.C. 2005). The opt- in requirement helps “‘prevent[ ] large group actions, with their vast allegations of liability, from being brought on behalf of employees who had no real involvement in, or knowledge of, the lawsuit.’” United Food & Commercial Workers Union v. Albertson’s, Inc., 207 F.3d 1193, 1200 (10th Cir. 2000) (quoting Arrington v. Nat’l Broad. Co., 531 F.Supp. 498, 500 (D.D.C. 1982)). “The ‘consent in writing’ requirement . . . [sought] to eradicate the problem of totally uninvolved employees gaining recovery as a result of some third party’s action in filing suit.” Arrington, 531 F.Supp. at 502. Several Circuit courts have concluded, as a result of this fundamental difference, that class actions and collective actions are “mutually exclusive and irreconcilable.” See Schmidt v. Fuller Brush Co., 527 F.2d 532, 536 (8th Cir. 1975); LaChapelle v. Owens-Ill., Inc., 513 F.2d 286, 288 (5th Cir. 1975). Our D.C. Circuit has recognized that opt-in and opt-out procedures represent “opposite requirement[s].” Lindsay v. Gov’t Emps. Ins. Co., 448 F.3d 416, 424 (D.C. Cir. 2006).

         B. ...

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