Santos v. E&R Servs.

Decision Date23 December 2021
Docket NumberDLB-20-2737
CourtU.S. District Court — District of Maryland
PartiesOSCAR SANTOS, et al., Plaintiffs, v. E&R SERVICES, INC., et al., Defendants.
MEMORANDUM OPINION

DEBORAH L. BOARDMAN UNITED STATES DISTRICT JUDGE

Plaintiffs Oscar Santos, Otoniel Morales, and Isidro Flores filed this lawsuit on behalf of themselves and other similarly situated individuals against their former employers, E&R Services Inc. and Emilio Rodriguez (together, E&R) alleging violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”) and related state laws based on the failure to pay overtime and minimum wages. ECF 1. Plaintiffs, former construction workers for E&R, a residential and commercial construction company, assert the FLSA claims as a collective action under 29 U.S.C. § 216(b), and they have moved for court-approved notice to potential plaintiffs and conditional certification of the action. ECF 38. Plaintiffs also filed a motion for leave to amend the complaint. ECF 51. Defendants oppose both motions, which the parties fully briefed. ECF 47 49, 58, 60. In addition, plaintiffs filed a motion to amend the scheduling order and a request to compel defendants' responses to their requests for time and payment records for four opt-in plaintiffs. ECF 48, 50. Defendants opposed the request for discovery. ECF 53. Finally, plaintiffs filed a motion for equitable tolling, ECF 59, which is unopposed. A hearing on the pending motions is not necessary. See Loc. R. 105.6.

Because plaintiffs have made a threshold showing that potential plaintiffs are similarly situated employees, their motion for court-approved notice and conditional certification is granted. Additionally, plaintiffs' motions for leave to file an amended complaint, to amend the scheduling order, and to compel discovery are granted, and plaintiffs' motion for equitable tolling is granted in part.

I. Factual Background[1]

Between Fall 2016 and Summer 2020, plaintiffs Santos, Morales, and Flores worked for E&R Services, Inc., a residential and commercial construction company in Prince George's County, Maryland.[2] Emilio Rodriguez is the chief executive officer and owner of the company. The three plaintiffs performed different roles for E&R in its commercial construction division. Santos excavated soil and rocks with heavy machinery to prepare sites for residential, commercial, and industrial building and infrastructure projects. Morales operated a machine to remove and replace cement. Flores shoveled and finished asphalt and cement.

Plaintiffs assert that defendants paid them and other similarly situated employees by the hour. They claim E&R did not pay its hourly employees for all hours worked or one-and-one-half times the employees' hourly rates for all overtime hours worked. Plaintiffs allege that defendants “required them [and those similarly situated] to work off the clock.” They claim these practices “applie[d] to all, or nearly all, of its construction workers.” In support, they produced time sheets that defendants completed on behalf of the workers on which defendants “round[ed] down to the nearest whole hour, ” thereby shaving hours and “short[ing] workers between 15 and 60 minutes nearly every working day.” ECF 38, at 3-4. Plaintiffs note the time sheets reflect that the workers did not take lunch breaks, which they claim entitled them to pay for every hour on the job. Id. In addition, plaintiffs contend that defendants paid them for fewer hours than the hours recorded on their time sheets. Id. at 4 (comparing, for example, a September 16, 2019 time sheet showing Santos worked 58 hours with a check showing he was paid $27/hour for only 57 hours). Daily timecards reflect that plaintiffs and other employees routinely worked the same hours as each other, were not paid for all the hours they worked each day, and worked more than 40 hours per week. ECF 38-6 - 38-12. Office Manager Hugo Flores testified that defendants treated all hourly construction workers the same for payroll purposes and hours calculations. ECF 38-1, at 104:3- 20, 112:22 - 113:3, 121:18 - 122:7. Plaintiffs seek conditional certification of the collective action on behalf of “hourly-paid workers that perform[ed] construction work” for E&R in its “commercial construction division for the three-year period preceding the entry of this [conditional certification] Order . . . .” ECF 49, at 8, 11; see ECF 38-23 (proposed order).

II. Motion for Conditional Certification
A. The FLSA Collective Action Certification Process

The FLSA generally requires that non-exempt employees receive at least the federal minimum hourly wage and, for those who work more than 40 hours in a week, overtime pay at the rate of one-and-one-half times their regular pay rate. 29 U.S.C. §§ 206(a), 207(a); see Encino Motorcars, LLC v. Navarro, --- U.S. ----, 138 S.Ct. 1134, 1138 (2018); Wai Man Tom v. Hosp. Ventures LLC, 980 F.3d 1027, 1032 (4th Cir. 2020). Under the FLSA, an employee may file an action against an employer on his or her own behalf and on behalf of “other employees similarly situated.” 29 U.S.C. § 216(b); see Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 757-58 (4th Cir. 2011). The statute establishes an opt-in scheme for “similarly situated” employees whereby they must notify the court of their intention to become a party to the action. 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.”). If employees choose to pursue a collective action, as is the case here, they may seek court-approved notice to inform similarly situated employees that they may join the litigation. See Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 169-70 (1989) (considering § 216(b) in context of the Age Discrimination in Employment Act). [D]istrict courts have discretion, in appropriate cases, to . . . facilitate[e] notice to potential plaintiffs and to allow claims to proceed as a collective action. See Camper v. Home Quality Mgmt., Inc., 200 F.R.D. 516, 519 (D. Md. 2000) (quoting Hoffman-La Roche, 493 U.S. at 169); Syrja v. Westat, Inc., 756 F.Supp.2d 682, 686 (D. Md. 2010).

When assessing whether an FLSA claim should proceed as a collective action, all district courts in this circuit traditionally have employed a two-stage process. See Lancaster v. FQSR, No. TDC-19-2632, 2020 WL 5500227, at *2 (D. Md. Sept. 11, 2020); Syrja, 756 F.Supp.2d at 686; Stacy v. Jennmar Corp. of Va., Inc., No 1:21CV00015, 2021 WL 4787278, at *2 (W.D. Va. Oct. 14, 2021); Mebane v. GKN Driveline N. Am., Inc., 337 F.R.D. 479, 485 (M.D. N.C. 2020); Vazquez-Aguilar v. Gasca, 477 F.Supp.3d 418, 421 (E.D. N.C. 2020); O'Quinn v. TransCanada USA Servs., Inc., 469 F.Supp.3d 591, 604 (S.D. W.Va. 2020); Graham v. Hall's S. Kitchens, LLC, 331 F.R.D. 619, 621 (D.S.C. 2018); Byard v. Verizon W.Va., Inc., 287 F.R.D. 365, 368 (N.D. W.Va. 2012); Long v. CPI Sec. Sys., Inc., 292 F.R.D. 296, 298 (W.D. N.C. 2013); Purdham v. Fairfax Cnty. Pub. Sch., 629 F.Supp.2d 544, 547 (E.D. Va. 2009). In the first stage, usually initiated pre-discovery and often “referred to as the ‘notice stage,' the court makes a ‘threshold determination of whether the plaintiffs have demonstrated that potential plaintiffs “are similarly situated, ” such that court-facilitated notice to putative class members would be appropriate.' Butler v. DirectSAT USA, LLC, 47 F.Supp.3d 300, 306 (D. Md. 2014) (quoting Syrja, 756 F.Supp.2d at 686). If the Court determines the potential plaintiffs are “similarly situated, ” the action is conditionally certified and court-approved notice is sent to potential opt-in plaintiffs. See Id. In the second stage, which typically follows the conclusion of discovery and begins with a motion for decertification, “the court engages in a more stringent inquiry to determine whether the plaintiff class is [in fact] ‘similarly situated' in accordance with the requirements of § 216, and renders a final decision regarding the propriety of proceeding as a collective action.” Syrja, 756 F.Supp.2d at 686 (quoting Rawls v. Augustine Home Health Care, Inc., 244 F.R.D. 298, 300 (D. Md. 2007)). At the conditional certification stage, the Court conducts a “modest inquiry” and “make[s] a threshold determination whether the class is similarly situated.” Lancaster, 2020 WL 5500227, at *2-3. In making that determination, the Court considers whether the plaintiffs and potential plaintiffs had similar job responsibilities and whether they were victims of the same unlawful policy. Blake v. Broadway Servs., Inc., No. CCB-18-86, 2018 WL 4374915, at *3 (D. Md. Sept. 13, 2018). The Court may grant conditional certification if there are “substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Lancaster, 2020 WL 5500227, at *3 (quoting Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001)); see also Montoya v. S.C.C.P. Painting Contractors, Inc., No. CCB-07-455, 2008 WL 554114, at *3 (D. Md. Feb. 26, 2008) ([I]f all the employees were wrongly treated in the same way, this should be a factor in favor of a similarly situated finding.”); Marroquin v. Canales, 236 F.R.D. 257, 260 (D. Md. 2006) ([P]otential plaintiffs are ‘similarly situated' when they together were victims of a common policy or scheme or plan that violated the law.”). All that is required at the initial certification stage is some evidence of “a similar legal issue as to coverage, exemption, or nonpayment of minimum wages or overtime arising from at least a manageably similar factual setting with respect to their job requirements and pay provisions.” Blake, 2018 WL 4374915, at *3...

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