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Respondent-Employer Enjoined From Requiring Current Employee Putative Class Members From Waiving Right to Participate in Class/Collective Action, Once Putative Class/Collective Action Pending

Herrington v. Waterstone Mortgage Corp.

In this case, the claimant-employees had initially filed their case as a class/collective action in federal court. Pursuant to arbitration agreements that the plaintiffs had signed during their employment, the defendant successfully moved to compel the plaintiffs to pursue their claims in arbitration. Because the arbitration agreement at issue called for arbitration pursuant to the American Arbitration Association’s (AAA) rules governing arbitration, the plaintiffs successfully argued that a Rule 23 type opt-out mechanism rather than 216(b)’s opt-in governed as the appropriate class mechanism. Twelve (12) days after the arbitrator’s holding that an opt-out class procedure would govern, the defendant began requiring all current employees to sign a new arbitration clause, which if enforced, would have precluded the current employees from participating in the putative class action, yet to be certified. Arguing that the respondent-employer’s unilateral effort to defeat putative class members’ participation in the arbitration required thorough remedial measures, the claimant-employees moved for a protective order and temporary restraining order to:

(1) Enjoin any further dissemination of the letter to current employees with the class-waiver form; (2) Enjoin any effort by the respondent-employer or its counsel to chill participation in the case, including prohibiting any further unauthorized communication with any class members concerning joining the case, except as approved by the arbitrator; (3) Enjoin retaliation by [Waterstone] against any individual participating in the case; (4) Direct that [Waterstone] (in a form and manner supervised by the Arbitrator or on consent of claimants’ counsel) promptly notify all class members who received Exhibits A and B of the impropriety of [Waterstone’s] acts and the invalidity of the waivers it solicited; (5) Sanction [Waterstone] with monetary relief for its improper behavior [ ] so that [Waterstone] does not achieve any of the benefit of chilling individuals from participating in this case; (6) Reserve the opportunity for individuals to join the case post-judgment, should they opt-out now, given their employer’s clear statement of its desire that they not join this case; (7) Award Claimant’s costs and attorneys’ fees for the time spent on the motion; [and] (8) Award such further relief in the future, as may become necessary to remedy the ill effects of [Waterstone’s] improper behavior.

In opposition, the respondent-employer argued that the motion should be denied because: (1) the arbitrator lacked jurisdiction over the issue presented, because the parties had not agreed to arbitrate the issue of the permissibility of the subsequent class-waivers; (2) it was procedurally improper, because a class or collective action had yet to be certified; and (3) the employees had not demonstrated the requisite irreparable harm to warrant the relief sought.

Initially, the arbitrator rejected the respondent-employer’s jurisdictional argument:

It is true that a class has not yet been certified. Indeed, the clause-construction award that contemplates a class arbitration may itself be vacated by the District Court. However, even if the motion to certify a class should be denied, or if the Court should vacate the clause-construction award, the arbitration may continue as a collective proceeding (opt in) as a result of Judge Crabb’s direction that Herrington “must be allowed to join other employees to her case.” (D. Ct. Decn. at 18).

The arbitrator similarly rejected the argument that the relief sought was premature:

Whether a proceeding continues as a class procedure or a collective procedure, it must be protected from coercive or misleading communications that are designed to, or have the effect of, persuading or intimidating potential claimants to withhold their participations. The law realistically recognizes that such improper communications may be just as effective pre-certification as post-certification. Therefore, it is within the jurisdiction – indeed, it is the duty – of the judge or arbitrator before whom such a proceeding is pending to protect the integrity of the proceeding and to require that all information conveyed by the parties to potential class members about the proceeding be accurate, not coercive, and not misleading.

Waterstone’s argument that control over communications cannot arise until a class is certified is simply wrong. The power (jurisdiction) to control the parties’ communications to class members or putative class members can arise at least as early as when the initial pleading is filed. See, e.g. Hoffman-LaRoche at 487 (“[I]t lies within the discretion of a district court to begin its involvement early at the point of the initial notice.”).

The arbitrator added:

Waterstone’s contention that it has “has never consented to arbitrate its management decisions as to the nature and form of employment agreements with employees who are not parties to this case” (Jurisd. Memo at 1) assumes that this arbitration is about what kind of dispute resolution provision going forward Waterstone may provide in its form employment agreement. The assumption is false. Herrington brought this arbitration to recover past minimum wages and overtime compensation allegedly due to her and to her fellow employees. Jurisdiction over that claim was established with the filing of the demand for arbitration, and it is the duty of the arbitrator to preserve and protect the integrity of the proceedings with respect to that claim. The entire dispute that is subject to this arbitration is therefore to be resolved under the dispute resolution provisions of the pre-Amendment employment agreement that governs Herrington’s claims.

Instead, the arbitrator held that once the proceeding had commenced, the employer-respondent could not require the potential class members to waive their rights to participate in the case, as members of the class:

However, whatever may be the legality or enforceability of either Option A or Option B in future disputes that might arise between Waterstone and its mortgage-loan employees, those amendments can have no impact on this Herrington arbitration or on the employee class’s rights or choices in it. Once Herrington commenced her arbitration under the original arbitration clause in the employment agreement, Waterstone could not change the nature or course of this pending arbitration by requiring the putative claimants in this proceeding to agree to an entirely different dispute-resolution regime. This arbitration must, therefore, continue under the Agreement that governed when it was commenced, the Agreement that Waterstone, itself, argued successfully to the District Court requires Herrington’s dispute to be arbitrated.

Thus, the arbitrator granted the claimant-employees’ their requested relief.

Click Herrington v. Waterstone Mortgage Corp. to read the entire Decision and Order on Claimant’s Application for Protective Order, Temporary Restraining Order and Preliminary Injunction.

M.D.Fla.: Opt-in Plaintiffs Who Filed Consents to Join Have Same Legal Status As Named Plaintiff Under FLSA

Norena-Giraldo v. Inglese Worldwide Corporation

In this case the court was faced with the issue of what exactly the legal status Opt-in Plaintiffs are, with respect to the named-Plaintiff, in a case that has not been certified as a collective action.  Initially, the court had denied Plaintiff’s Motion for a Final Default Judgment as to Opt-in Plaintiffs, while entering same as to the named-Plaintiff only.  However, the court invited reconsideration of the issue of the Opt-in Plaintiffs’ status.  Upon reconsideration, the court agreed that the Opt-in Plaintiffs shared the same legal status under the Fair Labor Standards Act (FLSA) as the named Plaintiff and thus, amended its prior order and entered judgment (as to liability) on behalf of the Opt-in Plaintiffs as well.

Noting that the issue was not so much whether the Opt-ins were party Plaintiffs, but rather what “sum certain” such Opt-in Plaintiffs were entitled to, the court, upon reconsideration set the case for a hearing to determine the amounts of same, recognizing that such Opt-in Plaintiffs essentially stood in the same shoes as the named-Plaintiff.

Click Norena-Giraldo v. Inglese Worldwide Corporation, to read the entire opinion.


S.D.Fla.: Defendant Compelled To Give Plaintiff Names, Addresses And Telephone Numbers Of All Employees Similarly Situated To Plaintiff, Prior To Conditional Certification

Disimone v. Atlas Service, Inc.

This case was before the Court on Plaintiff’s Motion to Compel Defendant to respond to certain discovery items.  Among the discovery items in dispute, Plaintiff sough the name, addresses and telephone numbers of all employees who had similar job duties to Plaintiff, and who were paid in the same way as Plaintiff for the three (3) years preceding the filing of the lawsuit.  The Court granted this portion of Plaintiff’s Motion to Compel.

The specific interrogatories at issue were,

“(13)  Please identify all employees of Defendant (including former employees) whose duties were similar to those performed by Plaintiff for Defendant and who were compensated in a manner similar to Plaintiff between April 2007 and the present. For all such individuals, please provide the last known mailing address and telephone number.” and

“(14) Please identify all employees of Defendant (including former employees) whose duties were similar to those performed by Plaintiff for Defendant and who were compensated in a manner similar to Plaintiff between April 2006 and March 2007. For all such individuals, please provide the last known mailing address and telephone number.”

The Court noted that, “Defendant objected on a variety of grounds, including overbreadth, irrelevance, materiality, undue burden and expense and prematurity given that Plaintiff has not received opt-in notice status.”

Rejecting Defendant’s arguments, the Court stated, “[t]hese objections are not well-taken. Interrogatories No. 13 and 14 properly seek the identification (through the provision of employees’ names, addresses, and telephone numbers) of all employees who performed similar duties to Plaintiff, and who have been compensated in a similar manner to Plaintiff while working for Defendant during the relevant two (2) year and three (3) year statute of limitations period. See Donahay v. Palm Beach Tours & Transp., Inc., Case No. 06-61270, 2007 WL 1119206, *1 (S.D.Fla. Apr. 16, 2007) (denying on grounds of overbreadth motion to compel production of personnel files of all employees similarly situated to plaintiff for the previous six years, but noting that a request seeking the names and addresses of said employees would be acceptable). The current and/or former similarly situated employees not only likely have knowledge of the actual hours Plaintiff worked during his employment with Defendants, but these individuals may very well possess knowledge of Defendants’ time/record keeping, lunch deduction policies and compensation practices, which will corroborate (or possibly refute) Plaintiffs claims that he and/or other employees were not paid for the full extent of their overtime hours worked. Plaintiff is not required to obtain Opt-In Notice Status before receiving identification of other witnesses who performed the same job duties or who were compensated in a manner similar to Plaintiff. See Hammond v. Lowe’s Home Centers, Inc., 216 F.R.D. 666, 671 (D.Kan.2003) ( “provisional certification is not necessarily a prerequisite for conducting limited discovery necessary for defining the proposed class”); Tucker v. Labor Leasing, Inc., 155 F.R.D. 687, 689 (M.D.Fla. Feb. 1, 1994) (same); Dupervil v. Asplundh Construction Co., Case No. 04-81106-CIV-MIDDLEBROOKS (DE 19, p. 2) (same). It should not be an “undue burden or expense” to provide the names, last known mailing address and telephone number of these employees, as Defendant is in possession of such information.”

Thus the Court granted Plaintiff’s Motion to Compel in part, ordering the Defendant to respond to Interrogatories No. 13 and 14, outlined above.