Forauer v. The Vermont Country Store, Inc. - Document 19
OPINION AND ORDER granting 7 Plaintiff's Motion for Conditional Certification of Collective Action, granting in part and denying in part Plaintiff's Motion to Notify Class; and granting in part and denying in part 10 Defendant's Cross-Motion for Right to Object to Plaintiff's Proposed Notification of Class. Signed by Chief Judge Christina Reiss on 7/31/2013. (Attachments: # 1 Addendum) (pac)
UNITED STATES DISTRICT COURT
DISTRICT OF VERMONT
THE VERMONT COUNTRY STORE, INC.,
2013 JUL 31 PH 3: 57
BY _ _ ~~._.__ ._.__,,,.
Case No. 5: 12-cv-276
OPINION AND ORDER GRANTING PLAINTIFF'S MOTION
FOR CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION
AND GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION
TO NOTIFY CLASS AND GRANTING IN PART AND DENYING INPART
DEFENDANT'S CROSS-MOTION FOR RIGHT TO OBJECT TO
PLAINTIFF'S PROPOSED NOTIFICATION TO CLASS
(Doc. 7, 10)
Pending before the court are two related motions: Plaintiff Doreen Forauer's
motion for conditional certification of a collective action and to notify the potential class
under the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (the "FLSA") (Doc. 7), and
Defendant The Vermont Country Store, Inc.'s ("VCS") cross-motion for the right to
object to the proposed notification to class (Doc. 10). The court heard oral argument on
the motions on June 3, 2013.
Ms. Forauer alleges that she worked for VCS for eight years, as both a
telemarketing sales representative and as a customer service representative. She further
alleges that VCS did not compensate her and other similarly-situated telemarketing sales
representatives and customer service representatives for all hours worked because VCS
allegedly required these employees to perform certain duties before and after their shifts
for which the employees were not paid. Her complaint sets forth a violation of 29 U.S.C.
§ 206, which requires employers to pay all employees at least the minimum wage for all
Ms. Forauer now seeks conditional certification of a collective action, pursuant to
29 U.S.C. § 216(b), for "a class of all current and former Telemarketing Sales
Representatives and Customer Service Representatives employed by The Vermont
Country Store within three years prior to the date of [this] order, who worked for [The
Vermont Country Store] but were not paid minimum wages for a portion of the hours
worked." (Doc. 7-1 at 1.) She further requests that the court orderVCS to disclose the
names of and identifying information for the potential class members; that the court
authorize notice of the class to potential class members; and that the court order VCS to
post notice at its worksites. VCS opposes the motion for conditional certification,
arguing that Ms. Forauer has not met her burden of showing that she is similarly situated
to other current or former employees or that VCS had in place a practice or policy
common to all telemarketing sales representatives and customer service representatives
that violates the FLSA.
VCS cross-moves with objections to the content of Ms. Forauer's proposed class
notice, including the time period for potential class members to opt-in to the proposed
class; the deadline for it to comply with any disclosure order; and the extent of employee
information it must provide to Ms. Forauer should the court order disclosure of potential
ves also requests that, if the court does authorize notice, the court set a
deadline for Ms. Forauer to send notice to potential class members. Ms. Forauer does not
object to such a deadline; however, she opposes VCS's proposed opt-in time period, as
well as the majority of its other objections to the proposed class notice.
Ms. Forauer is represented by Christopher J. Larson, Esq. and Erin H. Gallivan,
Esq. VCS is represented by Andrew H. Maass, Esq.
The following facts are derived from the complaint and the affidavits of Ms.
Forauer and Maureen Dunham, which are treated as true and accurate for the purposes of
the pending motions.
VCS employed Ms. Forauer from 2004 to 2012 as a telemarketing sales
representative and as a customer service representative at its locations in Manchester,
Vermont, and North Clarendon, Vermont, although she worked mostly at the North
Clarendon call center. VCS employed Ms. Dunham as a telemarketing sales
representative at its North Clarendon, Vermont call center for at least five years until her
termination in the spring of2012. Ms. Forauer alleges that the telemarketing sales
representatives and customer service representatives perform substantially similar tasks
and that both sets of employees use the same equipment at VCS's various locations.
Ms. Forauer and Ms. Dunham allege that VCS required each to perform unpaid
work before their shifts, which included turning on, booting up, and logging into their
computers and various software programs, including a timekeeping software; reviewing
emails and messages prior to the start of their shifts; and starting up VCS's website and
their phones. Ms. Forauer and Ms. Dunham further allege that VCS required each to
perform unpaid work during their breaks and at the end of their shifts, including closing
down the phone, website, software, and computer; documenting daily activities; and
reviewing the work schedule and requesting changes. Ms. Forauer claims she spent
between twenty to thirty minutes per shift completing work for which she was not
compensated. Ms. Dunham claims she spent an average of fifteen minutes before her
shifts, five minutes during her breaks, and five to ten minutes after her shifts completing
this work. In addition, Ms. Forauer asserts that VCS did not have a process for
employees to recover wages for time spent completing this additional work.
Ms. Forauer and Ms. Dunham assert that VCS required its telemarketing sales
representatives and customer service representatives to perform the same tasks without
compensation that Ms. Forauer and Ms. Dunham were required to perform and that VCS
knew these employees were not being compensated for the additional time worked. Ms.
Forauer states that VCS instructed its employees "to arrive before their scheduled shifts
in order to perform preliminary activities in order to be ready to take calls the moment
their scheduled shifts began." (Doc. 1 at 4, ,-r 16.) Ms. Forauer identifies one supervisor
whom she claims told Ms. Forauer that she needed to arrive at work earlier. She also
identifies two employees who she claims told her they were "frustrated" with VCS's
alleged policy and thought it was "unfair" and not "right" that employees were not being
compensated for the additional tasks. (Doc. 7-1 at 15-16.)
Ms. Dunham alleges that she was trained "on opening and closing procedures" and
that she was instructed "to clock in exactly at the start of the shift and out exactly at the
end of the shift." (Doc. 18 at 2.) She notes that she could see and hear other employees
arriving to and leaving from their shifts and that she spoke with other employees near her
station before and after their shifts, and she notes that she could also see the employee at
the station behind her station completing the same tasks that she completed. As a result,
Ms. Dunham alleges that all telemarketing sales representatives and customer service
representatives "went through the same processes before and after shifts" because ves
"required" the employees complete "the same pre-shift and post-shift activities" off the
clock. ld. at 2, 6.
If employees were not ready to take calls at the minute their shifts began or at the
minute their breaks ended, or if employees logged out before their shifts ended, ves
allegedly reprimanded employees. Both Ms. Forauer and Ms. Dunham assert they were
personally reprimanded on this basis. In addition, ves allegedly had "policies in place"
whereby an employee's performance scores were adversely affected if an employee was
not ready to take calls every minute of the scheduled shift. (Doc. 1 at 4, ~ 16.)
Ms. Forauer seeks certification of a class comprised of what she characterizes as
similarly-situated individuals "who were, or are, employed by [yeS] in customer service,
technical support, and similar positions in its call center" and that these individuals are
"similar" because "their duties consisted primarily of providing customer service by
telephone or online chat or email while working in [yeS's] call center(s)." (Doc. 1 at 23, ~~ 10-11.) She alleges ves also "did not pay them for some of the time worked that
occurred before and after the schedule shift," id., and that they would be "readily
identifiable" through yes's records. ld. at 4, ~~ 18-20.
Conclusions of Law and Analysis.
Conditional Class Certification under the FLSA, 29 U.S.C. § 216(b).
Section 216 of the FLSA provides: "An action to recover the liability prescribed in
[this section] 1 may be maintained against any employer (including a public agency) in
any Federal or State court of competent jurisdiction by anyone or more employees for
and in behalf of himself or themselves and other employees similarly situated." 29
U.S.c. § 216(b). Section 216(b) "expressly authorizes employees to bring collective ...
actions" and thereby evinces a congressional policy of allowing FLSA plaintiffs "the
opportunity to proceed collectively." 2 Hoffmann-La Roche Inc. v. Sperling, 493 U.S.
165, 170 (1989).
In Hoffmann-La Roche, the Supreme Court addressed whether "district courts may
play any role in prescribing the terms and conditions of communication from the named
plaintiffs to the potential members of the class on whose behalf the collective action has
1 The FLSA imposes liability for failure to pay minimum wage, 29 U.S.C. § 206, for failure to
compensate for overtime, 29 U.S.C. § 207, and for discharge or other retaliation against an
employee who availed himself or herselfto the protections afforded under 29 U.S.C. § 215(a)(3).
2 A § 216(b) collective action differs from a class action pursuant to Fed. R Civ. P. 23 in several
important respects. "[I]n order to participate in a [FLSA] collective action, an employee must
'opt-in,' meaning the employee must consent in writing to join the suit and that consent must be
filed with the court." Lynch v. United Servs. Auto. Ass 'n, 491 F. Supp. 2d 357,367 (S.D.N.Y.
2007). "Unlike class action suits brought pursuant to Fed. R Civ. P. 23, only potential plaintiffs
who 'opt in' may be bound by or benefit from the judgment in a FLSA collective action. In
this way, Section 216(b) creates a device less like a Rule 23 class action and more like
permissive joinder, allowing all employees similarly situated to join their cases in one action."
Lee v. ABC Carpet & Home, 236 F.RD. 193, 196 (S.D.N.Y. 2006) (internal citations omitted).
The "requirements of Fed. R Civ. P. 23 do not apply to the approval ofa [FLSA] collective
action and thus 'no showing of numerosity, typicality, commonality and representativeness need
be made. '" Young v. Cooper Cameron Corp., 229 F.RD. 50,54 (S.D.N.Y. 2005) (quoting
Foster v. The Food Emporium, 2000 WL 1737858, at *1 (S.D.N.Y. Apr. 26,2000»; see also
Lynch, 491 F. Supp. 2d at 369 (same). "As a result, the 'similarly situated' standard for
certifying a 216(b) collective action is considerably more liberal than class certification under
Rule 23." Lynch, 491 F. Supp. 2d at 369; see also Iglesias-Mendoza v. La Belle Farm, Inc., 239
F.RD. 363, 367-68 (S.D.N.Y. 2007).
been brought.,,3 ld. at 169. It held that "district courts have discretion, in appropriate
cases, to implement 29 U.S.C. § 216(b) ... by facilitating notice to potential plaintiffs,"
id., and by allowing discovery of the names and addresses of potential class members.
ld. at 169, 170; see also Braunstein v. E. Photographic Labs., Inc., 600 F.2d 335,336 (2d
Cir. 1978) (interpreting § 216 "as permitting, rather than prohibiting, notice").
Once a § 216(b) action is filed, a district court "has a managerial responsibility to
oversee the joinder of additional parties to assure that the task is accomplished in an
efficient and proper way," Hoffmann-La Roche, 493 U.S. at 170-71, and it is "within the
discretion of a district court to begin its involvement early, at the point of the initial
notice, rather than at some later time." ld. at 171. A district court's discretion, however,
is not "unbridled," and it "must be scrupulous to respect judicial neutrality ... to avoid
even the appearance of judicial endorsement of the merits of the action." ld. at 174
(cautioning further that "intervention in the notice process for case management purposes
[must be] distinguishable in form and function from the solicitation of claims").
In light of Hoffmann-La Roche and Braunstein, "[i]t is well settled that district
courts have the discretionary power to authorize the sending of notice to potential class
members in a collective action brought pursuant to § 216(b) of the FLSA." Realite v. Ark
Rests. Corp., 7 F. Supp. 2d 303,305-06 (S.D.N.Y. 1998) (quoting Hoffmann v. Sbarro,
Inc., 982 F. Supp. 249,261 (S.D.N.Y. 1997)); see also Lynch v. United Servs. Auto.
Ass'n, 491 F. Supp. 2d 357,367 (S.D.N.Y. 2007) ("[T]o better serve the FLSA's 'broad
remedial [goal],' courts may order notice to other potential similarly situated employees
to inform them ofthe opportunity to opt-in the case.") (quoting Hoffmann-La Roche, 493
Prior to Hoffmann-La Roche, in Braunstein v. Eastern Photographic Laboratories, Inc., 600
F.2d 335 (2d Cir. 1978), the Second Circuit addressed "whether a district court has the power to
order that notice be given to other potential members of the plaintiff class under the 'opt-in'
provision of the Fair Labor Standards Act dealing with actions for nonpayment of statutorily
required minimum wages and overtime compensation." ld. at 335-36. The Second Circuit
concluded "that it makes more sense, in light of the 'opt-in' provision [of the FLSA, § 216(b),] to
read the statute as permitting, rather than prohibiting, notice in an appropriate case," a holding
the Second Circuit concluded "comports with the broad remedial purpose of [the FLSA], which
should be given a liberal construction, as well as with the interest of the courts in avoiding
multiplicity of suits." ld. at 336.
U.S. at 173); Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y. 2005) ("A
district court may permit an opt-in notice to be sent to potential plaintiffs.").
In order to determine "whether a matter should proceed as a collective action,"
district courts in the Second Circuit have "generally follow[ ed] a two-step process." Lee
v. ABC Carpet & Home, 236 F.R.D. 193, 197 (S.D.N.Y. 2006); see also Lynch, 491 F.
Supp. 2d at 367-68 ("Federal district courts in New York have adopted a two-step
approach to determine whether certification is proper."). The Second Circuit has stated
that this two-step approach is "sensible" but has not expressly endorsed or rejected it:
The first step involves the court making an initial determination to send
notice to potential opt-in plaintiffs who may be "similarly situated" to the
named plaintiffs with respect to whether a FLSA violation has occurred....
At the second stage, the district court will, on a fuller record, determine
whether a so-called "collective action" may go forward by determining
whether the plaintiffs who have opted in are in fact "similarly situated" to
the named plaintiffs. The action may be "de-certified" if the record reveals
that they are not, and the opt-in plaintiffs' claims may be dismissed without
Myers v. Hertz Corp., 624 F.3d 537,554-55 (2d Cir. 2010) (internal citations omitted)
("[T]he district courts of this Circuit appear to have coalesced around a two-step method,
a method which, while again not required by the terms of FLSA or the Supreme Court's
cases, we think is sensible."); see also Morgan v. Family Dollar Stores, Inc., 551 F.3d
1233, 1260 (l1th Cir. 2008) ("sanction[ing] a two-stage procedure for district courts to
effectively manage FLSA collective actions in the pretrial phase").
Conditional certification is the first step "in which the court determines, based on
[the] plaintiffs' pleadings and affidavits, whether the plaintiffs and potential opt-in
plaintiffs are sufficiently 'similarly situated' to issue notice and allow the case to proceed
as a collective action through discovery." Lynch, 491 F. Supp. 2d at 368. "[C]ourts have
held that plaintiffs can meet this burden by making a modest factual showing sufficient to
demonstrate that they and potential plaintiffs together were victims of a common policy
or plan that violated the law." Realite, 7 F. Supp. 2d at 306 (quoting Hoffmann, 982 F.
Supp. at 261); see, e.g., Guzelgurgenli v. Prime Time Specials Inc., 883 F. Supp. 2d 340,
345 (E.D.N.Y. 2012) (same). "[T]he named plaintiff need only demonstrate a 'factual
nexus' between his or her situation and the situation of other current and former
employees." Young, 229 F.R.D. at 54 (quoting Hoffmann, 982 F. Supp. at 261,262)
(collecting cases). The focus of this first step "is not on whether there has been an actual
violation oflaw[,] but rather on whether the proposed plaintiffs are 'similarly situated'
under 29 U.S.c. § 216(b) with respect to their allegations that the law has been violated."
Young, 229 F.R.D. at 54.
"When determining whether a matter shall proceed as a collective action, courts
should be mindful of the remedial purposes of the FLSA.,,4 Iglesias-Mendoza v. La Belle
Farm, Inc., 239 F.R.D. 363, 367 (S.D.N.Y. 2007) (citing Braunstein, 600 F.2d at 336).
The named plaintiff s burden "is very low" at this step, and "the initial 'conditional
certification' determination is merely a preliminary finding." Lynch, 491 F. Supp. 2d at
368 (citing Lee, 236 F.R.D. at 197); see also Iglesias-Mendoza, 239 F.R.D. at 367
(describing standard as "lenient"). Additionally, the district court should "not resolve
factual disputes, decide substantive issues going to the ultimate merits, or make
credibility determinations" when considering whether the named plaintiff and potential
opt-in members are similarly situated, and "any factual variances that may exist between
the plaintiff and the putative class do not defeat conditional class certification." Lynch,
491 F. Supp. 2d at 368,369; see also Iglesias-Mendoza, 239 F.R.D. at 368.
4 The Supreme Court and the Second Circuit have recognized that the FLSA's "principal
congressional purpose ... was to protect all covered workers from substandard wages and
oppressive working hours, 'labor conditions [that are] detrimental to the maintenance ofthe
minimum standard of living necessary for health, efficiency and general well-being of workers. '"
Barrentine v. Ark.-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981) (alterations in original)
(quoting 29 U.S.C. § 202(a»; Freeman v. Nat 'I Broad. Co., 80 F.3d 78,86 (2d Cir. 1996)
("[The] FLSA was intended ... to prohibit substandard labor conditions."). The "FLSA was
designed to give specific minimum protections to individual workers and to ensure that each
employer covered by the Act would receive '[a] fair day's pay for a fair day's work' and would
be protected from 'the evil of overwork as well underpay. '" Barrentine, 450 U.S. at 739
(quoting 81 Congo Rec. 4983 (1937»; see also Chao V. Gotham Registry, Inc., 514 F.3d 280,283
(2d Cir. 2008) (same). The FLSA "sets a national 'floor' in tenns of working conditions, in
order to protect workers from the substandard wages and excessive hours that might otherwise
result from the free market." Rogers V. City a/Troy, 148 F.3d 52,57 (2d Cir. 1998).
If the named plaintiff "meets the minimal burden of showing that the similarly
situated requirement is met, a court certifies the class as a collective action," and
"[p]otential class members are then notified and provided with the opportunity to opt in
to the action." Lee, 236 F.R.D. at 197; see also Lynch, 491 F. Supp. 2d at 368 ("Once the
court determines that potential opt-in plaintiffs may be 'similarly situated' for the
purposes of authorizing notice, the court 'conditionally certifies' the collective action,
and the plaintiff sends court-approved notice to potential members.") (quoting Iglesias-
Mendoza, 239 F.R.D. at 367). The "potential plaintiffs may then elect to opt-in pursuant
to [§] 216(b) by filing Consent Forms with the court," and, "[o]nce notice is
accomplished, the action proceeds as a collective action throughout the discovery
process." Lynch, 491 F. Supp. 2d at 368.
The first step is only conditional, and after discovery, at the second step, the "court
examines the record and again makes a factual finding regarding the similarly situated
requirement." Lee, 236 F.R.D. at 197. "[I]fthe claimants are similarly situated, the
collective action proceeds to trial, and if they are not, the class is decertified, the claims
of the opt-in plaintiffs are dismissed without prejudice, and the class representative may
proceed on his or her own claims." Id.; see also Iglesias-Mendoza, 239 F.R.D. at 367.
ves opposes Ms. Forauer's motion for conditional certification, arguing that Ms.
Forauer has not met her burden of showing that she is similarly situated to any current or
former employees at VCS. VCS further argues that Ms. Forauer cannot establish that it
had a common plan or policy violative of the law because it contends: (1) Ms. Forauer
could have logged into the timekeeping software as the first step, rather than the last step;
(2) VCS informed employees to refrain from working at home and afforded employees
time at work to perform required tasks separate from their duties of handling customer
calls; (3) Ms. Forauer references the practices of only one supervisor, when there are
likely many supervisors; and (4) VCS provides employees a "Time Card Change Form,"
which allows employees to override the timekeeping software to correct their time
worked and which Ms. Forauer had used in the past.
While the contentions raised by ves would undermine Ms. Forauer's claim that it
violated § 206 of the FLSA, at this stage in the proceedings the court's focus "is not on
whether there has been an actual violation oflaw," Young, 229 F.R.D. at 54, because the
court does not "decide substantive issues going to the ultimate merits." Lynch, 491 F.
Supp. 2d at 368; see also Young, 229 F.R.D. at 55 ("[A] court adjudicating a motion to
authorize a collective action need not evaluate the merits of plaintiffs' claims in order to
determine whether a similarly situated group exists .... Thus, [plaintiffs] entitlement to
relief under the FLSA ... does not figure in the inquiry.") (internal citations and
quotation marks omitted). The court also does not "resolve factual disputes" or "make
credibility determinations" at the conditional certification stage. Lynch, 491 F. Supp. 2d
at 368. As a result, "[f]or the moment, the factual variations [yeS] rel[ies] on do not
undercut [Ms. Forauer's] allegations of common wage and overtime practices that violate
the FLSA." Iglesias-Mendoza, 239 F.R.D. at 368; see also Lynch, 491 F. Supp. 2d at 369
(noting that "any factual variances that may exist between the plaintiff and the putative
class do not defeat conditional class certification").
Instead, Ms. Forauer must make the "modest factual showing" required for
conditional certification of a FLSA action. Here, she has done so by providing
supporting affidavits and "supporting allegations [that are] specific, not conclusory"
regarding why she claims the FLSA has been violated and why she claims that the
proposed class consists of similarly situated employees. Cf Guan Ming Lin v. Benihana
Nat 'I Corp., 755 F. Supp. 2d 504,509,512-13 (S.D.N.Y. 2010) (denying conditional
certification when plaintiffs alleged they were not reimbursed for uniform expenses in
violation of the FLSA but "failed to present their allegations with sufficient specificity"
as to "detail what their 'uniforms' are comprised of' and "how much the purchase and
maintenance oftheir uniforms cost them or how these costs relate to their weekly wage");
Morales v. Plantworks, Inc., 2006 WL 278154, at *2-3 (S.D.N.Y. Feb. 2,2006) (denying
conditional certification when plaintiff s affidavit and exhibits included the "conclusory
allegation" that twenty other employees were forced to work overtime but there were "no
allegations of a company policy or plan to deny ... overtime").
Ms. Forauer, who worked as both a telemarketing sales representative and a
customer service representative and who worked at both the North Clarendon and
Manchester locations, has averred that she was required to follow the alleged policy in
both her roles as a telemarketing sales representative and a customer service
representative and when she worked at either location. See Realite, 7 F. Supp. 2d at 307
(concluding plaintiffs' burden met when plaintiffs showed that compensation "practices
... were not limited to a single ... restaurant or a single employee position" and that
"these compensation practices remained the same even when [employees] changed job
positions within a given restaurant or transferred to one of the [defendant's other
She and Ms. Dunham also allege that VCS specifically instructed all of its
employees on this policy, which establishes, at least at this stage, that a company-wide
policy applied uniformly to all telemarketing sales representatives and customer service
representatives and resulted in those employees not being compensated for their time
worked. See Hoffmann, 982 F. Supp. at 261-62 (granting conditional certification
because plaintiffs established that group of employees plaintiffs sought to certify as a
class "were subject to reductions in their compensation as result of a uniform companywide policy"). First-hand knowledge of how the employer's policies specifically impact
hours worked, and therefore employee compensation, is sufficient to show a common
plan or policy that violates the FLSA. See Guzelgurgenli, 883 F. Supp. 2d at 346-47
(denying conditional certification of class of store managers because none of named
plaintiffs alleged they were or had been store managers or alleged they had knowledge of
compensation for store managers, but granting conditional certification of class of instore hourly employees, assistant store managers, and delivery drivers because named
plaintiffs established knowledge of compensation as to these employees).
Because Ms. Forauer has identified a specific policy that allegedly applies to any
employee working in the same positions that she worked, she has shown the "'factual
nexus' between ... her situation and the situation of other current and former employees"
employed in the same positions; she has shown therefore how she and the "proposed
plaintiffs are 'similarly situated' under 29 U.S.c. § 216(b) with respect to their
allegations that the law has been violated." Young, 229 F.R.D. at 54 (quoting Hoffmann,
982 F. Supp. at 261,262); see also Guillen v. Marshalls alMA, Inc., 841 F. Supp. 2d 797,
801 (S.D.N.Y. 2012) (explaining plaintiff must show she "is similarly situated to the
employees [sJhe proposes to include in the collective action with respect to" the
plaintiffs specific FLSA claim).
The court therefore GRANTS the motion for conditional certification of a
collective action under the FLSA, and the court conditionally certifies a class of all
current and former telemarketing sales representatives and customer service
representatives employed by The Vermont Country Store within three years prior to the
date of this Opinion and Order, dated July 31,2013.
Timing and Content of Class Notice and Consent Form.
Ms. Forauer argues that it is appropriate at this juncture for the court to authorize
notice to be sent to potential class members. VCS objects, arguing that it would be more
appropriate to continue discovery before authorizing notice.
In determining whether to send notice at this time, the court must "be mindful of
the remedial purposes of the FLSA," Iglesias-Mendoza, 239 F.R.D. at 367, and often
"courts have endorsed the sending of notice early in the proceeding, as a means of
facilitating the FLSA's broad remedial purpose and promoting efficient case
management." Hoffmann, 982 F. Supp. at 262; see also Young, 229 F.R.D. at 55 ("[T]he
sending of notice to similarly situated individuals 'comports with the broad remedial
purpose of the Act, ... as well as with the interest of the courts in avoiding multiplicity
of suits. "') (alteration in original) (quoting Braunstein, 600 F.2d at 336). Further, "even
if plaintiffs , claims tum out to be meritless or, in fact, all the plaintiffs tum out not to be
similarly situated, notification at this stage, rather than after further discovery, may
enable more efficient resolution of the underlying issues in this case." Krueger v. N. Y.
Tel. Co., 1993 WL 276058, at *2 (S.D.N.Y. July 21, 1993). "Courts have recognized that
it is best to authorize a collective action and then 'wait[ ] to see what the facts bear out. '"
Young, 229 F.R.D. at 55 (alteration in original) (quoting Realite, 7 F. Supp. 2d at 308).
In light of these considerations, the court GRANTS Ms. Forauer's motion to notify the
potential class members of the collective action.
Both parties submitted proposals for the notice and consent form. The notice
submitted by Ms. Forauer tracks notices that have been previously authorized. See, e.g.,
Lynch, 491 F. Supp. 2d at 372-74. The court authorizes a form of notice substantially
similar to that submitted by Ms. Forauer, subject to the following revisions. The
approved notice and consent form are attached to this Opinion and Order as Addendum 1.
With regard to Ms. Forauer's proposal, she requests under the section titled
"Further Information" one sentence that reads, "There is information about this suit at the
attorneys' website, www.yourvtlawyer.com ... Because the content of this website has not
been provided to the court to review, the court will not authorize inclusion of this
sentence in the class notice at this time.
With regard to yeS's proposal, the court GRANTS those changes proposed by
VCS to which Ms. Forauer does not object. The court also agrees with VCS that three
additional proposed modifications to the notice of a FLSA class are warranted. First, the
court agrees that it is appropriate to omit the phrase "who performed unpaid work before,
during, or after shifts" (Doc. 7-2 at 1,2) as it assumes that employees have performed
work for which they should have been paid, which is an umesolved factual issue in this
case. Second, the court agrees that the class notice should inform potential class
members of the consequences of failing to timely return the "Consent to Become a Party
Plaintiff' form. Third, the court agrees with VCS that it is appropriate to include the
name and contact information for its attorney, which will alert potential class members to
any conflicts before those individuals opt-in.
The court DENIES VCS's two remaining proposed modifications to the class
notice that include, first, an additional paragraph proposed to be included under the
section titled "Effect of Joining or Not Joining This Lawsuit" and, second, a different
articulation of the section titled "No Retaliation Permitted." The court agrees with Ms.
Forauer that the proposed additional paragraph could discourage potential class members
from joining the collective FLSA action. Because potential class members could obtain
this information by consulting with Ms. Forauer's attorneys, the potential to discourage
individuals from opting in to the class outweighs any value from including the proposed
information in the notice. Further, the court agrees that Ms. Forauer's proposed
paragraph on "No Retaliation Permitted" provides a more straightforward and
understandable articulation of this concept than the paragraph VCS proposed.
Disclosure of Potential Class Members and Identifying Information.
Ms. Forauer requests the court to order disclosure of the names, addresses,
telephone numbers, dates of employment, locations of employment, dates of birth, and
last four digits of social security numbers for potential class members. VCS does not
object to the disclosure of the names, addresses, telephone numbers, and dates of
employment for potential class members. It objects to disclosure of the dates of birth and
social security numbers.
At least one court has ordered the disclosure of "name, address, telephone number,
dates of employment ... , location of employment, date of birth, and last four digits of
their Social Security Number." Lynch, 491 F. Supp. 2d at 371-72. However, at this
juncture, Ms. Forauer has not shown how disclosure of dates of birth and social security
numbers will aid in identifying and sending notice to potential class members. The court
therefore DENIES WITHOUT PREJUDICE Ms. Forauer's request for this information,
and the court ORDERS VCS to disclose to Ms. Forauer the names, addresses, telephone
numbers, and the dates of employment of potential class members.
Deadline to Comply with Disclosure Order.
Ms. Forauer requests the court order VCS to respond to the disclosure order
contained herein within fifteen days. VCS requests that the court extend this deadline to
thirty days. Courts ordering disclosure have required a defendant to comply within five
days, see Lynch, 491 F. Supp. 2d at 371, twenty-one days, see Young, 229 F.R.D. at 57,
and thirty days. See Iglesias-Mendoza, 239 F.R.D. at 370; Lee, 236 F.R.D. at 202. Here,
VCS reasonably maintains that a fifteen-day deadline is unduly burdensome and that a
thirty-day deadline is more appropriate. The court agrees and ORDERS VCS to disclose
to Ms. Forauer the names and information of potential class members within thirty (30)
days from the date of this Opinion and Order.
Deadline for Ms. Forauer to Send Notice to Potential Class Members.
While not addressed initially by Ms. Forauer in her motion, VCS requests that the
court order "a date certain for [Ms. Forauer] to notify potential opt-in candidates of this
lawsuit." (Doc. 9 at 14.) VCS proposes twenty days after the court approves notice,
which Ms. Forauer responds that the deadline will prove unworkable ifVCS has thirty
days within which to comply with the court's disclosure order contained herein. Ms.
Forauer therefore requests in her reply "a date at least days twenty thereafter" the date the
court orders disclosure "by which [she] is required to mail the approved notice." (Doc.
11 at 2.) Her proposed schedule is reasonable under the circumstances, and the court
hereby adopts it. The court thus ORDERS Ms. Forauer to send notice to potential class
members within twenty (20) days from the date that VCS complies with the disclosure
order contained herein.
Period for Potential Class Members to Opt-In.
Ms. Forauer requests a ninety-day period for potential class members to opt-in.
VCS contends that this period should be shortened to sixty days.
"Generally, 'courts have held that a sixty (60)-day period is sufficient for the
return of Consent Forms,' particularly where ... the 'proposed class is relatively
localized and not extremely large.'" Guzelgurgenli, 883 F. Supp. 2d at 357 (quoting
Bowens v. At!. Maint. Corp., 546 F. Supp. 2d 55,85 (E.D.N.Y. 2008)). "While some
courts have granted up to 90 day opt-in periods, they generally do so where the period is
agreed upon between the parties or special circumstances require an extended opt-in
period." Whitehorn v. Wolfgang's Steakhouse, Inc., 767 F. Supp. 2d 445,452 (S.D.N.Y.
2011); see also Fang v. Zhuang, 2010 WL 5261197, at *4 (E.D.N.Y. Dec. 1,2010)
(providing for 90-day period "in light of the frequent, long-term international travel of
many of the prospective plaintiffs"); but see Sherrill v. Sutherland Global Servs., Inc.,
487 F. Supp. 2d 344,351 (W.D.N.Y. 2007) (authorizing ninety-day opt-in period without
consideration of any special circumstances).
Here, the potential class likely is not "extremely large" and likely is "relatively
localized." Guzelgurgenli, 883 F. Supp. 2d at 357 (internal quotation marks omitted).
Moreover, Ms. Forauer identifies no special circumstances, beyond considerations
general to any FLSA collective action, warranting a ninety-day opt-in period for this
case. The court thus ORDERS that potential class members must opt-in within sixty (60)
days from the date Ms. Forauer sends to the potential class members the "Notice of
Opportunity to Join a Lawsuit to Recover Back Wages."
Deadline to File Consents.
The court ORDERS Ms. Forauer to file any "Consent to Become a Party Plaintiff'
formes) returned to her attorneys with the court within five (5) business days of their
Posting Notice at VCS's Worksites.
Ms. Forauer requests that the court order ves to post notice ofthis action "at all
of its worksites in the same areas in which it is required to post FLSA notices." (Doc. 7-1
ves does not object to this request.
District courts have granted a plaintiffs request to require a defendant to post the
notice and consent forms at its worksites, on the basis that potential class members will
benefit from the posting of notice at the defendant's places of employment. See
Guzelgurgenli, 883 F. Supp. 2d at 358-59; see also Sherrill, 487 F. Supp. 2d at 351
("[The defendant] is hereby required to post continuous notice of this action and opt-in
forms in a conspicuous location in each of its call centers during the ninety-day opt-in
period referenced below. This method, along with the mailing of notices, strikes the
appropriate balance between ensuring adequate notification, while also minimizing any
disturbance to [the defendant's] workplace.").
The court therefore ORDERS VCS to post notice of the collective action and the
consent form at all VCS worksites where telemarking service representatives or customer
service representatives work; that VCS post this notice within five (5) days after
complying with the disclosure order contained herein; and that notice remain posted for
the entirety of the sixty (60) day opt-in period.
For the reasons stated above, the court GRANTS Ms. Forauer's motion for
conditional certification of a FLSA collective action and GRANTS IN PART and
DENIES IN PART her motion to notify potential class members of the collections action.
(Doc. 7.) The court further GRANTS IN PART and DENIES IN PART VCS's crossmotion objecting to the proposed notification to the class. (Doc. 10.)
Dated at Rutland, in the District of Vermont, this
day of July, 2013.
United States District Court