Shipes v. Amurcon Corp., CASE NUMBER: 10-14943
| Decision Date | 23 March 2012 |
| Docket Number | CASE NUMBER: 10-14943 |
| Parties | ALLISON SHIPES and THERESA JULL, individually and on behalf of similarly situated people, Plaintiffs, v. AMURCON CORPORATION, a Michigan Corporation, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
HONORABLE VICTORIA A. ROBERTS
Before the Court is Plaintiffs' Motion for § 216(b) Certification and Notice to Potential Class Members. (Doc. # 17).
The Court GRANTS IN PART AND DENIES IN PART Plaintiffs' motion.
The Court GRANTS conditional collective action certification to a class of all persons employed at Amurcon Corporation within three years of this Order, and paid on an hourly basis, who were eligible for but did not receive, an overtime premium as required under the Fair Labor Standards Act.
The Court DENIES WITHOUT PREJUDICE conditional certification to a class of all salaried employees of Amurcon Corporation.
The Court GRANTS Plaintiffs' discovery request, as outlined in Section III(D) ofthis Order.
Plaintiffs Allison Shipes and Theresa Jull are former employees of Defendant Amurcon Corporation ("Amurcon"), a property management company. Shipes was a Leasing Agent paid on an hourly basis. Jull was a Staff Accountant; she earned a salary. Former Plaintiff Kelly Kade was a Community Manager at Amurcon; however, she dismissed her claims with prejudice. (See Doc. # 51). Former Plaintiff and Community Manager Jani Platz dismissed her claims with prejudice as well. (See Doc. #s 59, 61).
Shipes and Jull filed suit against Amurcon on behalf of themselves and all similarly situated employees, alleging the company violated the Fair Labor Standards Act ("FLSA") in two ways. First, Amurcon engaged in what Plaintiffs call "time-records fixing," described as improperly editing the time sheets of hourly employees to reduce the number of hours worked so Amurcon could avoid paying overtime wages for those hours. Amurcon did this by removing hours from employees' time sheets after those hours were worked-thus not paying them for hours worked in one week above forty ("overtime hours")-and by changing its employees' time from overtime to "comp" time to avoid paying for overtime hours at the mandated rate of "not less than one and one-half times the regular rate at which [they are] employed." 29 U.S.C. § 207(a)(2). Second, to the extent Amurcon classified its salaried employees as exempt, Plaintiffs say it did so improperly, since they perform essentially the same job duties as hourly, non-exempt employees.
Plaintiffs ask the Court to:
1) certify a collective action for unpaid overtime wages under §216(b) of the FLSA; 2) order Amurcon to provide Plaintiffs with the names, all known addresses and telephone numbers of the class members; and 3) approve the court-supervised notice, attached to this memorandum as Exhibit A, to the class members. In addition, Plaintiffs request that this court approve an opt-in period of ninety days.
(Doc. # 17; Plaintiffs' Motion for § 216(b) Certification and Notice to Potential Class Members at 1). Plaintiffs define their proposed collective class as: "All hourly and salaried persons employed by Amurcon Corporation at any time since_________________(the last three years) who were eligible for but did not receive an overtime premium as required under the Fair Labor Standards Act." Id. (emphasis in original).
Affidavits support Plaintiffs' motion. (See Doc. #s 17-3, 17-4, 17-6; Pls' Exs. B, C, and E). Shipes says she worked as a Leasing Agent at Amurcon's Rochester Hills location from October 2009 to November 2010. (Doc. #17-3; Pls' Ex. B ¶ 3). According to her affidavit, her job duties included: "returning calls from potential tenants, showing apartments to prospective tenants, processing tenant applications, preparing leases, preparing apartments for tenants to move-in, resident relations, processing work orders, collection of rents, conducting marketing activities, cleaning the office and vacant apartments, and walking the grounds to inspect for maintenance needs." (Id. ¶ 5). She worked seven days a week. (Id. ¶ 6). Throughout her employment, her supervisors made her "clock out" but continue working. (Id. ¶ 9). She was regularly given "comp" time for hours that she worked in excess of forty hours per week. (Id. ¶ 10). She knows of "many other individuals with whom [she] worked alongside and spoke with before, during, and after work who complained that they were not paid properly for overtime worked." (Id. ¶ 12).
Jull says she worked as a Staff Accountant at Amurcon's Southfield location from January 2002 until February 2009. (Doc. # 17-6, Pls' Ex. E ¶s 3,5). Her job duties entailed: "data entry with respect to: monthly reports to the Michigan State Housing Development Authority and the U.S. Department of Housing and Urban Development, company financial statements, property taxes, year-end audits, and other general data entry for eleven (11) different Amurcon properties." (Id. ¶ 5). She claims she did not supervise other employees and was not permitted to exercise discretion. (Id. ¶ 8). She generally worked six or seven days per week during her final two years with the company. (Id. ¶ 10). Additionally, it was her understanding that she had to work until assignments were completed and could be disciplined if they were not done on time. (Id. ¶ 11). She says she knows of "other individuals who regularly worked overtime hours for Amurcon." (Id. ¶ 14).
Pursuant to the FLSA of 1938, 29 U.S.C. § 201 et seq., under certain circumstances an employer must not require an employee to work more than forty hours per week without paying that employee time and a half for overtime. See 29 U.S.C. §§ 207(a), 215(a). Section 216(b) permits, inter alia, an aggrieved employee to file suit against an employer on behalf of herself and other "similarly situated" employees. Id. § 216(b), ruled unconstitutional on other grounds in Alden v. Maine, 527 U.S. 706, 712 (1999) ().
However, there are exemptions to the maximum hour/overtime pay requirements of the FLSA. See Id. § 213. Relevant to this case is the "bona fide executive, administrative, or professional" employee exemption. Id. § 213(a)(1). Under § 213(a)(1), the maximum hour and overtime pay requirements do not apply to "any employee employed in a bona fide executive, administrative, or professional capacity. . . ." Id.
The FLSA implementing regulations include a short test for classifying employees for purposes of the executive, administrative or professional exemption. An employee is an exempt executive if: (1) she is paid on a salary basis not less than $455 per week, exclusive of board, lodging or other facilities; (2) her primary duty is management of the enterprise or a department or subdivision of the enterprise; (3) she regularly directs the work of two or more employees; and (4) she has the authority to hire or fire other employees or her "suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change in status of other employees are given particular weight." 29 C.F.R. § 541.100(a).
An employee is an exempt administrator if: (1) she is paid on a salary or fee basis at not less than $455 per week, exclusive of board, lodging or other facilities; (2) her primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer's customers; and (3) her primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. Id. § 541.200. The regulations provide examples of exempt administrators, including certain employees in the financial services industry. See id. § 541.203(b).
An employee who files an FLSA action on behalf of herself and others, seeks conditional certification of a "collective action." See Wlotkowski v. Michigan Bell Tel. Co., 267 F.R.D. 213, 216 (E.D. Mich. 2010). Collective actions are different from class actions under Fed. R. Civ. P. 23 in that putative class members must opt in, as opposed to opt out, of the class. O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 583 (6th Cir. 2009). "These opt-in employees are party plaintiffs, unlike absent class members in a Rule 23 class action." Id. A collective action serves an important remedial purpose; through it, a plaintiff who has suffered only small monetary harm can join a larger pool of similarly situated plaintiffs. Id. at 586. (citing Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 170 (1989)). "That pool can attract effective counsel who knows that if the plaintiffs prevail, counsel is entitled to a statutorily required reasonable fee as determined by the court." Id.
There are two requirements for a collective action under Section 216(b) brought on behalf of an employee and others similarly situated. Comer v. Wal-Mart Stores, 454 F.3d 544, 546 (6th Cir. 2006). First, the plaintiffs must be "similarly situated" to each other and to putative plaintiffs. Id. Second, the putative plaintiffs must signal their affirmative consent to participate in the suit in writing. Id. "The district court may use its discretion to authorize notification of similarly situated employees to allow them to opt into the lawsuit." Id. (citing Sperling, 493 U.S. at 169).
Courts generally employ a two-stage approach to determine whether the opt-in and named plaintiffs are "similarly situated" for purposes of certifying a collective action. See Wlotkowski, 267 F.R.D. at 217; Noble v. Serco, Inc., No. 3:08-76-DCR, 2009 WL 3154252, at *1 (E.D. Ky. Sept. 28, 2009). At the "notice stage"-which takes place at thebeginning of discovery-"the court determines whether the suit should...
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