Aboud v. City of Wildwood
| Decision Date | 17 May 2013 |
| Docket Number | Civil No. 12-7195 (JS) |
| Parties | ELIAS ABOUD, RICHARD ADAIR, et al., in their individual capacity and as a representative of other similarly situated employees (police officers of the City of Wildwood), Plaintiffs, v. THE CITY OF WILDWOOD, Defendant. |
| Court | U.S. District Court — District of New Jersey |
On November 20, 2012, plaintiffs Elias Aboud, Richard Adair, Christopher Fox, Kenneth Phillips and Paul Zielinski, current or former Wildwood police officers, filed their complaint against the City of Wildwood ("Wildwood").2 On behalf of themselves and those similarly situated, plaintiffs seek to redress Wildwood's alleged violations of the Fair Labor Standards Act ("FLSA"), and seek to conditionally certify a class pursuant to 29 U.S.C. §216(b).3 Theessence of plaintiffs' claim is that Wildwood failed to pay them for wages and overtime compensation mandated by the FLSA.
Presently before the Court is plaintiffs' "Motion to Conditionally Certify FLSA Collective Action and Send Notice to the Class." [Doc. No. 3]. Wildwood opposes the motion. The Court exercises its discretion to decide plaintiffs' motion without oral argument. Fed. R. Civ. P. 78; L. R. Civ. P. 78.1. For the reasons to be discussed, plaintiffs' motion is GRANTED in part and DENIED in part. As to plaintiffs' main requests, the Court grants conditional certification of their collective action and approves their proposed Notice/Consent to Join form with two additions. The Court denies plaintiffs' request that their notice be posted at work and that a follow-up postcard be sent.
Plaintiffs are members of the Cape May County Lodge No. 7 Fraternal Order of Police ("FOP"). The FOP is the exclusive collective negotiations agent for all Lieutenants, Sergeants and Police Officers employed by the Wildwood Police Department ("WPD"). On May 27, 2011, Wildwood and the FOP entered into a Collective Bargaining Agreement ("CBA") in effect from January 1, 2012 through December 31, 2014. Paul Zielinski Certification (November 20,2012) ¶¶1-2. ("Zielinski Cert.").5 Wildwood employs approximately thirty-three (33) full-time permanent police officers. Complaint ¶10. Plaintiffs are hourly employees and allege Wildwood "failed and/or refused to pay them and a class of similarly situated police employees for the time worked before the start of their official shift and time worked after the end of their official shift for years." Brief at 11. [Doc. No. 3]. Wildwood has three (3) shifts for its police officers:
Zielinski Cert. ¶5. Wildwood requires its officers to "clock in and out" to account for their hours worked.6 The CBA requires the officers to work forty (40) hours per week. Per the CBA, work in excess of forty (40) hours is compensated at time and one-half (1½). The CBA specifically provides:
CBA at Article XX (p. 42).
As to the instant motion, plaintiffs present two FLSA claims. The first claim relates to Wildwood's requirement that police officers clock in fifteen minutes before their shift starts. This requirement is documented in Article XX.C (p.44) of the CBA which reads:
Plaintiffs allege the fifteen minute requirement violates the FLSA because it:
requires its police officers to report to work 15 minutes before their shift but does not pay the officers for this required report and work time. Defendant requires it[s] police officer employees to clock in 15 minutes before his or her scheduled official shift. Defendant, however, does not pay the police officer for this "off-the-clock" time.
Brief at 16. Plaintiffs allege that although they are required to clock in fifteen minutes before their scheduled start time, and the FLSA requires they be paid for the time, the time is not paid. Plaintiffs allege Wildwood violates the FLSA because it does not pay overtime for the fifteen minutes police officers are required to clock in before their shift formally starts.7
Plaintiffs' second main contention relates to alleged "suffered or permitted" overtime. Plaintiffs allege they are regularly required to perform work after their shift ends because of unanticipated events that occur during the shift. However, plaintiffs claim Wildwood does not pay them for work beyond the end of their shift unless the time is "pre-approved." Zielinski Cert. ¶14. Plaintiffs allege this violates the FLSA because although they are required to work overtime, and Wildwood permits the overtime work to be performed, they are not paid for the overtime. Plaintiffs allege, "[d]efendant's practice of requiring pre-approved time in order to be compensated for time actually worked circumvents the mandates under the FLSA requiring compensation for all work suffered or permitted by the employer." Brief at 19-20.
Wildwood raises several arguments in opposition to plaintiffs' request for conditional certification. First, Wildwood arguescertification should be denied because "not all putative class members work in the same 'corporate department, division and location' or perform similar jobs." Opposition to Motion ("Opposition") at 2. [Doc. No. 8]. Second, Wildwood alleges plaintiff Adair "has stated that he does not wish to be involved in this lawsuit." Id. Third, Wildwood alleges plaintiff Phillips signed a release in a separate lawsuit releasing Wildwood from all employment claims, including claims made in this lawsuit. Id. at 2-3. Fourth, Wildwood alleges that since plaintiffs Aboud and Fox have not submitted affidavits, there is no evidence they opted in as plaintiffs. Fifth, Wildwood claims plaintiffs misrepresent the work week. It claims the WPD has a 35-hour work week, rather than a 40-hour work week, and that even if plaintiffs work an extra 15 minutes per day, they only work 36.25 hours per week. Id. at 3. Last, Wildwood argues plaintiffs do not supply evidence to support their claim that they can be called away from break or lunch to handle calls. Id. at 3-4. The Court will address each of defendant's arguments infra.
Pursuant to 29 U.S.C. § 216(b), the FLSA authorizes employees to bring a claim on behalf of other employees "similarly situated" who are affected by an employer's common policy. White v. Rick Bus Co., 743 F. Supp. 2d 380, 386 (D.N.J. 2010). The term "similarlysituated" is not defined in the FLSA. Kronick v. Bebe Stores, Inc., No. 07-4514 (RBK), 2008 WL 4546368, at *1 (D.N.J. Oct. 2, 2008). The Third Circuit has noted that, while "[n]either FLSA nor the ADEA define the term 'similarly situated,'" a representative, but not exhaustive, list of relevant factors to consider includes "whether the plaintiffs are employed in the same corporate department, division and location; advanced similar claims []; sought substantially the same form of relief; and had similar salaries and circumstances of employment." Ruehl v. Viacom, Inc., 500 F.3d 375, 388 n.17 (3d Cir. 2007).
In determining whether a suit should proceed as a collective action under the FLSA courts use a two stage analysis. Symczyk v. Genesis HealthCare Corp., 656 F.3d 189, 192 (3d Cir. 2011). During the first stage the court "makes a preliminary determination whether the employees enumerated in the complaint can be provisionally categorized as similarly situated to the named plaintiff." Id. at 192 (citations omitted). The court does not consider the merits of the dispute at this time, and the plaintiff must only demonstrate that the potential class members' "positions are similar, not identical," to his own. Steinberg v. TD Bank, N.A., No. 10-cv-5600 (RMB/JS), 2012 WL 2500331, at *5 (D.N.J. June 27, 2012)(citations omitted); Shakib v. Back Bay Rest. Grp., Inc., No. 10-CV-4564 (DMC)(JAD), 2011 WL 5082106, at *2 (D.N.J. Oct. 26, 2011) ().
The Third Circuit utilizes a "modest factual showing" standard to determine if employees are "similarly situated." Symczyk, 656 F.3d at 192-93 ()(quoting Hoffmann-La Roche Inc. v. Sperling et al, 493 U.S. 165, 172)). The modest factual showing analysis is performed using a lenient standard. Steinberg, 2012 WL 2500331, at *5 (...
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