Ludlum v. C&I Engineering LLC, No. 4:2018cv05192 - Document 32 (E.D. Wash. 2019)
Court Description: ORDER granting 23 Plaintiff's Motion for Conditional Certification and Court-Authorized Notice. Signed by Chief Judge Thomas O. Rice. (BF, Paralegal)
Download PDF
<![CDATA[
1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 AUDREY LUDLUM, individually and for others similarly situated, NO: 4:18-CV-5192-TOR 8 Plaintiff, 9 v. 10 ORDER GRANTING PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION AND COURTAUTHORIZED NOTICE C&I ENGINEERING, LLC, 11 Defendant. 12 13 BEFORE THE COURT is Plaintiff’s Motion for Conditional Certification 14 and Court-Authorized Notice (ECF No. 23). This matter was submitted for 15 consideration with oral argument, and a hearing has been set for May 23, 2019. 16 However, pursuant to Local Civil Rule 7(i)(3)(B), the Court exercises its discretion 17 that oral argument is not warranted to resolve the instant motion. The Court has 18 reviewed the record and files herein, the completed briefing, and is fully informed. 19 For reasons discussed below, the Court GRANTS Plaintiff’s Motion for 20 Conditional Certification and Court-Authorized Notice (ECF No. 2). ORDER GRANTING PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION AND COURT-AUTHORIZED NOTICE ~ 1 1 BACKGROUND 2 Defendant C&I Engineering, a Washington Limited Liability Company, is 3 “a consulting firm that provides consultants, staff augmentation support, and plant 4 design modifications services to clients across the United States.” ECF No. 10 at 5 4, ¶ 16; 5, ¶ 22. According to its website, Defendant provides consulting services 6 to expanding markets in power utilities, fossil, department of energy, and 7 department of defense industries. Id. at 4, ¶ 15. 8 9 Plaintiff Audrey Ludlum is a former employee of Defendant. ECF No. 10 at 3, ¶ 9. Plaintiff was hired by Defendant as a civil engineer consultant in 2016 and 10 placed on assignment to Defendant’s client, Energy Northwest, in Richland, 11 Washington. Id. at 6, ¶¶ 28-29; 2, ¶ 8; see also ECF No. 10-1. The terms of 12 Plaintiff’s employment are set forth in a “Temporary Employment Agreement 13 Exempt Employee,” which outlines the following compensation plan: 14 15 16 You shall be paid $83.00/hr for the first 40 qualifying hours in a work week. Therefore salary will be approximately $3,320.00/hr for a 40 hour work week before deductions. For each qualifying hour in excess of 40 in a regularly scheduled work week, you shall be paid $83.00/hour. Your work schedule may vary according to the needs of C&I and its Client[.] 17 18 ECF No. 10-1 at 2 (Ex. A). Despite the appearance of the term “salary” in the 19 Employment Agreement, Plaintiff describes herself as an “hourly worker” of 20 Defendant, as she “was not guaranteed a salary,” she “reported the hours she ORDER GRANTING PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION AND COURT-AUTHORIZED NOTICE ~ 2 1 worked to [Defendant] on a regular basis,” and she “was only paid only (sic) for 2 the hours she worked.” ECF No. 10 at 5, ¶¶ 26-27, 35-36. 3 Plaintiff initiated this class and collective action against Defendant to 4 recover unpaid overtime and other damages under the Fair Labor Standards Act 5 (“FLSA”), 29 U.S.C. § 207, and Washington’s Minimum Wage Act (“MWA”), 6 chapter 49.46 RCW. ECF No. 10. As stated in her Amended Complaint, Plaintiff 7 asserts that Defendant (1) failed to pay her, and other workers like her, overtime at 8 1.5 times their regular rates, as required by the FLSA’s overtime provisions, and 9 (2) failed to pay her, and other workers like her, overtime compensation or provide 10 11 rest periods as required under the MWA. Id. at 7, ¶ 51; 10, ¶¶ 65-68. On April 5, 2019, Plaintiff filed a Motion for Conditional Certification and 12 Court-Authorized Notice (ECF No. 23), which is currently before the Court. In the 13 pending motion, Plaintiff moves the Court to conditionally certify a nationwide 14 collective action of current and former employees of Defendant who were paid 15 “straight time for overtime” pursuant to the FLSA’s collective action provision, 29 16 U.S.C. § 216(b). ECF No. 23 at 1-2. That Court notes that, in the instant motion, 17 Plaintiff does not move for class certification under Federal Rule of Civil 18 Procedure 23 to pursue her MWA claims. As such, the Court does not address 19 Plaintiff’s MWA claims or class action arguments in this Order. Only Plaintiff’s 20 FLSA collective action claims are presently before the Court. ORDER GRANTING PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION AND COURT-AUTHORIZED NOTICE ~ 3 1 2 3 DISCUSSION A. Federal Overtime Requirements The FLSA generally requires an employer to pay its employees at least 1.5 4 times their regular rate of pay for all hours worked in excess of forty hours weekly. 5 29 U.S.C. § 207(a)(1). Employers who violate this requirement are liable for 6 damages in the amount of the unpaid overtime, “an additional equal amount as 7 liquidated damages,” and “reasonable attorney’s fee . . . and costs.” 29 U.S.C. § 8 216(b). Employees may, however, be exempt from overtime requirements under 9 certain circumstances defined by the FLSA and its implementing regulations. 10 The FLSA recognizes a “professional employee” exemption, which exempts 11 from overtime requirements those individuals employed in a “professional 12 capacity.” 29 U.S.C. § 213(a)(1). “Professional employee” is defined by 13 regulation as any employee “[c]ompensated on a salary or fee basis” and: 14 (2) Whose primary duty is the performance of work: 15 (i) Requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction; or 16 17 (ii) Requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor. 18 19 29 C.F.R. § 541.300(a) (2). “Primary duty” is defined to mean “the principal, 20 main, major, or most important duty that the employee performs.” 29 C.F.R. § ORDER GRANTING PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION AND COURT-AUTHORIZED NOTICE ~ 4 1 541.700(a). In determining whether a plaintiff qualifies as a professional 2 employee, courts first determine whether the employee satisfies the duty 3 requirements of an exempt employee and then examines whether the employee was 4 actually paid a salary (the “salary basis test”). See Webster v. Pub. Sch. Employees 5 of Wash., Inc., 247 F.3d 910, 914 (9th Cir. 2001). 6 Defendant asserts its employees are exempt from the FLSA’s overtime 7 requirements under the professional employee exemption. ECF No. 28 at 7. 8 According to Defendant, it properly classified its engineer consultants as exempt 9 professionals “because engineers receive specialized instruction and engineering 10 projects require specialized knowledge,” and Defendant’s engineers were paid on a 11 salary basis. Id. Plaintiff maintains that she and other consultants employed by 12 Defendant “were all hourly employees of C&I mischaracterized as exempt,” “were 13 never guaranteed a salary,” and “were only paid for hours actually worked.” ECF 14 No. 23 at 3. 15 Because it is uncontested that Defendant classified its consultants as exempt 16 employees and did not pay them overtime, the key issue in this case involves 17 determining whether Defendant’s employees are exempt from federal overtime 18 requirements under the professional exemption. However, the Court need not 19 decide whether the exemption applies in connection with the instant motion; rather, 20 ORDER GRANTING PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION AND COURT-AUTHORIZED NOTICE ~ 5 1 the only issue currently before the Court is whether the applicability of the 2 exemption may be resolved on a collective basis under 29 U.S.C. § 216(b). 3 B. Collective Action under 29 U.S.C. § 216(b) 4 Under the FLSA, plaintiffs may institute a collective action on behalf of 5 themselves and “other employees similarly situated” against an employer who 6 violates the FLSA’s overtime requirements. 29 U.S.C. § 216(b). The FLSA’s 7 collective action mechanism, 29 U.S.C. § 216(b), permits workers to litigate jointly 8 if they “(1) claim a violation of the FLSA, (2) are ‘similarly situated,’ and (3) 9 affirmatively opt in to the joint litigation, in writing.” Campbell v. Los Angeles, 10 11 903 F.3d 1090, 1100 (9th Cir. 2018) (quoting 29 U.S.C. § 216(b)). Importantly, collective actions under the FLSA are distinguishable from 12 class actions under Federal Rule of Civil Procedure 23. Id. at 1101. In a FLSA 13 collective action, any similarly situated employee must opt-in to the case following 14 notice, whereas under Rule 23, a class members who does not wish to be bound by 15 the judgment must opt out of the case. See id.; Fed. R. Civ. P. 23. Moreover, 16 FLSA collective actions are not subject to the numerosity, commonality, and 17 typicality rules of a class action suit brought under Rule 23. Campbell, 903 F.3d at 18 1101 (“Collective actions and class actions are creatures of distinct texts— 19 collective actions of section 216(b), and class actions of Rule 23—that impose 20 distinct requirements.). Rather, in collective actions, the plaintiff need only show ORDER GRANTING PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION AND COURT-AUTHORIZED NOTICE ~ 6 1 that she is “similarly situated” to the other members of the proposed class. 29 2 U.S.C. § 216(b). There is, however, little circuit law defining “similarly situated.” 3 Within the Ninth Circuit, district courts take a two-step approach to the 4 certification of a FLSA collective action. First, at or around the pleading stage, 5 plaintiffs will typically move for preliminary certification, as Plaintiff has done 6 here. In assessing a motion for preliminary certification, a district court conducts 7 an initial “notice stage” analysis of whether plaintiffs are similarly situated to the 8 proposed class, and determines whether a collective action should be certified for 9 the purpose of sending notice of the action to potential class members. Campbell, 10 903 F.3d at 1101. Unlike class certification under Rule 23, preliminary 11 certification under § 216(b) of the FLSA does not “produce a class with an 12 independent legal status[ ] or join additional parties to the action.” Genesis 13 Healthcare Corp. v. Symczyk, 569 U.S. 66, 75 (2013). Rather, “‘[t]he sole 14 consequence’ of a successful motion for preliminary certification is ‘the sending of 15 court-approved written notice’ to workers who may wish to join the litigation as 16 individuals.” Campbell, 903 F.3d at 1101 (quoting Genesis, 569 U.S. at 75). And 17 as the Ninth Circuit has explained, “[p]reliminary certification, to the extent it 18 relates to the approval and dissemination of notice, is an area of substantial district 19 court discretion.” Id. at 1110 n.10. 20 ORDER GRANTING PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION AND COURT-AUTHORIZED NOTICE ~ 7 1 The second stage of the collective action process generally occurs after the 2 completion of discovery. At that time, the party opposing collective certification 3 will move for decertification of the collective action for failure to satisfy the 4 “similarly situated” requirement in light of the evidence produced to that point. Id. 5 at 1109. In evaluating a motion for decertification, courts “take a more exacting 6 look at the plaintiffs’ allegations and the record.” Id. The Ninth Circuit recently 7 endorsed a three-factor test for analyzing the “similarly situated” requirement at 8 the decertification stage. First, courts determine whether party plaintiffs are 9 “similarly situated,” meaning “they share a similar issue of law or fact material to 10 the disposition of their FLSA claims.” Id. at 1117. Second, courts consider “the 11 various defenses available to defendants which appear to be individual to each 12 plaintiff.” Id. at 1113 (quoting Thiessen v. General Electric Capital Corp, 267 13 F.3d 1095, 1103 (10th Cir. 2001)). Third, courts consider whether “procedural 14 considerations” may justify decertification. Id. at 1115-16 (“decertification of a 15 collective action of otherwise similarly situated plaintiffs cannot be permitted 16 unless the collective mechanism is truly infeasible.”). 17 18 19 20 In the instant motion, Plaintiff seeks to conditionally certify the following collective action pursuant to 29 U.S.C. § 216(b): All hourly workers of C&I Engineering, LLC who were, at any point in the past 3 years, paid “straight time for overtime” (the “Putative Class Members”). ORDER GRANTING PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION AND COURT-AUTHORIZED NOTICE ~ 8 1 ECF No. 23 at 2. As discussed above, at the conditional certification stage, the 2 Court evaluates Plaintiff’s motion under a “lenient” standard. Plaintiff’s motion is 3 supported by her Amended Complaint, two declarations, copies of paychecks, her 4 Employment Agreement, and job listings taken from Defendant’s website. See 5 ECF Nos. 10 (Amended Complaint); 23-1 (Ludlum Decl.); 23-2 (Paychecks); 23-3 6 (Employment Agreement); 23-6 (Cabrera Decl.). Plaintiff alleges that these 7 submissions establish that workers employed by Defendant in technical consultant 8 positions “were farmed out to provide services to generating stations and power 9 plants, and the hourly workers were subject to the same common payment plan of 10 11 straight time for overtime, regardless of title or location.” Id. at 5. In the Court’s view, Plaintiff’s submissions are consistent with each other, 12 and from this small record Plaintiff has shown that employees hired by Defendant 13 as consultants perform similar job duties. Moreover, the submissions also support 14 Plaintiff’s assertion that she, and other consultants, worked more than forty hours 15 per week but were compensated with a salary that did not take into account 16 overtime pay. Defendant concedes that “C&I employees all engaged with the 17 company under a ‘Temporary Employment Agreement Exempt Employee,’” and 18 that all exempt employees were paid the same way—“on a weekly salary basis.” 19 ECF No. 28 at 2-3. 20 ORDER GRANTING PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION AND COURT-AUTHORIZED NOTICE ~ 9 Plaintiff’s showing, though minimal, is sufficient for the Court to grant 1 2 conditional certification at this time. This is due to the leniency with which the 3 Court treats the motion. Though the Court finds this decision to be a close one, 4 Plaintiff has succeeded in plainly alleging a common policy to classify Defendant’s 5 employees as exempt, thereby potentially denying them overtime compensation in 6 violation of the FLSA. Accordingly, the Court conditionally certifies the following 7 collective action pursuant to the FLSA: 8 All current and former employees of C&I Engineering, LLC, who were, at any point in the past three (3) years, paid “Straight time for overtime” 1 9 Plaintiff seeks the Court’s approval of her proposed notice to potential opt-in 10 11 plaintiffs. ECF No. 23 at 21-25. Defendant has not raised any objections to the 12 proposed notice. Accordingly, the Court accepts Plaintiff’s Notice and Consent 13 Form, as proposed in Exhibit D in Plaintiff’s motion for conditional certification, 14 15 1 Although Plaintiff seeks certification of a collective class composed of all 16 “hourly workers” of Defendant, the Court finds this description somewhat 17 misleading. ECF No. 23 at 2. Defendant maintains that it employs only salaried 18 employees. ECF No. 28 at 3. Thus, for greater accuracy, the Court describes 19 putative collective action members as “current and former employees” of 20 Defendant. ORDER GRANTING PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION AND COURT-AUTHORIZED NOTICE ~ 10 1 and the proposed certification schedule. Id. Additionally, the Court finds that (1) 2 email notification is appropriate in this case, (2) Plaintiff’s Counsel may follow-up 3 with putative collective action members with a mailed reminder notice, and (3) 4 Plaintiff’s Counsel may also follow-up with certain putative collective action 5 members via telephone if the member’s contact information is shown to be 6 incorrect or no longer valid. 7 ACCORDINGLY, IT IS ORDERED: 8 1. The hearing set for May 23, 2019 is VACATED. 9 2. Plaintiff’s Motion for Conditional Certification and Court-Authorized 10 Notice (ECF No. 23) is GRANTED. 11 12 3. The putative collective of the following similarly situated persons is hereby conditionally certified under 29 U.S.C. § 216(b): 13 14 All current and former employees of C&I Engineering, LLC, who were, at any point in the past three (3) years, paid “Straight time for overtime” 15 4. The proposed notice attached to Plaintiff’s motion as Exhibit D is 16 hereby adopted. Plaintiff’s counsel is authorized to disseminate the notice by U.S. 17 mail and email. 18 // 19 // 20 // ORDER GRANTING PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION AND COURT-AUTHORIZED NOTICE ~ 11 1 5. Within ten (10) days of this Order, Defendant shall produce to 2 Plaintiff the following information for all Putative Collective Action Members in 3 Excel (.xlsx) format: 4 5 Full name; last known address(es) with city, state and zip code; last known e-mail address(es) (non-company address if applicable); last known telephone number(s); beginning date(s) of employment; and ending date(s) of employment (if applicable). 6 7 6. Within twenty (20) days of this Order, Plaintiff’s Counsel shall send a 8 copy of the Court-approved Notice and Consent Form to the Putative Collection 9 Action Members by First Class U.S. mail and by email. Plaintiff’s Counsel may 10 follow-up the mailed Notice and Consent Forms with contact by telephone to those 11 Putative Collective Action Members whose mailed contact information is incorrect 12 or no longer valid. 13 7. The Putative Collective Action Members shall have sixty (60) days 14 from the first dissemination of notice to “opt-in” and join the lawsuit by returning 15 their signed Consent forms to Plaintiff’s Counsel. 16 8. Thirty (30) days after mailing the Notice and Consent Forms to 17 Putative Collective Action Members, Plaintiff’s Counsel may mail and email a 18 second, identical copy or postcard of the Notice and Consent Form to the Putative 19 Collective Action Members reminding them of the deadline for the submission of 20 the Consent Form. ORDER GRANTING PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION AND COURT-AUTHORIZED NOTICE ~ 12 1 2 3 The District Court Clerk is directed to enter this Order and provide copies to the parties. DATED May 16, 2019. 4 5 THOMAS O. RICE Chief United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ORDER GRANTING PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION AND COURT-AUTHORIZED NOTICE ~ 13
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
