United States District Court, District of Columbia
LUIS ALEXANDER VASQUEZ et al. Plaintiffs,
GRUNLEY CONSTRUCTION CO., INC. et al. Defendants.
MICHAEL HARVEY UNITED STATES MAGISTRATE JUDGE.
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,
Court will deny the motion.
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.
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).
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.
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.
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.
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
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.
Rule 23 Class Actions and FLSA Collective Actions
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).
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.
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).