DAVID RIBOT, PERRY HALL, JR., DEBORAH MILLS, ANTHONY BUTLER, JENNIFER BUTLER, JONATHAN LUNA and LOIS BARNES, individually, and on behalf of all others situated, Plaintiffs,
FARMERS INSURANCE GROUP, FARMERS INSURANCE EXCHANGE, 21st CENTURY INSURANCE COMPANY and AIG INSURANCE SERVICE, INC., Defendants.
ORDER CLARIFYING AND MODIFYING CLASS DEFINITIONS AND SPECIFYING PROCEDURES FOR CLASS NOTICE, CLASS LISTS, AND DISCOVERY (DKT Nos. 234, 237, 240, 243-1, 244, 245)
DEAN D. PREGERSON, District Judge.
Presently before the court are Plaintiffs' Motion to Modify and Clarify Class Definitions (DKT No. 240) and Motion to Approve and Distribute Class Notice and Production of Class Lists (DKT No. 237), as well as Defendants' Oppositions to these motions (DTK Nos. 244 and 245). Additionally, the court has before it Plaintiffs' Third Status Report Regarding Meet and Confer Efforts with the Dept. of Labor (DKT No. 234) and Defendants' response (DKT. No 243-1).
The background and procedural history are well known. Having reviewed the parties' submissions and heard oral argument, the court rules as follows:
A. Request by Plaintiffs to Clarify Scope of Employees Excluded Pursuant to Department of Labor (DOL) Settlement
Plaintiffs ask the court to clarify the scope of employees excluded pursuant to the settlement reached between Farmers and the DOL. Plaintiffs' position appears to be that only employees at work sites covered by the DOL settlement who signed a waiver document have validly waived future FLSA claims and should therefore be excluded from the FLSA class. (DKT No. 240 at 11; Declaration of William King in Support of Motion ¶ 6.)
The court disagrees. As Defendants point out, courts that have considered the issue have consistently and persuasively held that acceptance of settlement funds and receipt of the applicable notice form (WH-58) is sufficient to constitute waiver of FLSA claims; signing of the form is not required. See, e.g. Blackwell v. United Drywall Supply, 362 Fed.Appx. 56, 58 (11th Cir. 2010) (holding that "receipt of a WH-58 form and cashing of the employer's check is sufficient to effect a waiver of the right to sue under the FLSA"); Niland v. Delta Recycling Corp. , 377 F.3d 1244, 1248 (11th Cir. 2004) ("A WH-58 is a standard form used by the DOL to inform an employee that, although he has the right to file suit under 29 U.S.C. § 216(b), acceptance of the back wages offered will result in waiver of those rights."); Kaiser v. At The Beach, Inc. , 2010 WL 5114729, at *10 (N.D. Okl. Dec. 9, 2010) (holding that any employee who receives but does not sign WH-58 form and cashes check has "waived his right to sue for back wages for the period covered by the receipt [WH-58 form]."). Plaintiffs' reliance on Dent v. Cox Comm. Las Vegas, Inc. 502 F.3d 1141 (9th Cir.) is misplaced because Dent held only that a WH-58 form does not constitute waiver of FLSA claims arising from incidents outside of the period covered by the form.
Additionally, Plaintiffs appear to suggest that employees at work sites covered by the DOL settlement who did not receive settlement proceeds because they could not be located should be included in the FLSA class. See DKT. No. 240 at 7. The court does not agree. Defendants have asserted, and plaintiffs have presented no evidence to contest, that as part of the DOL settlement, the DOL lawfully accepted payment on behalf of employees who were tendered but did not cash their checks. (DTK. No. 214 at 6, 12). Plaintiffs have presented no evidence of any legal deficiency in the distribution process. As the court made clear in denying Plaintiffs' motion to Equitably Toll Limitations and For Corrective Action, (DKT. No. 223):
There are strong public policy reasons for the court to refrain from interfering with the finality of a settlement, especially one negotiated by the DOL. The DOL was given the express authority to supervise the settlement of wage claims. 29 U.S.C. 216(c). The court would need to have a serious concern with the validity of the agreement to inject itself in an already disbursed settlement nearly two years after the fact.
DTK No. 223 at 7-8. In view of these considerations, the court clarifies that the language in its certification order excluding from the FLSA class "class members whose overtime claims were settled in the March 14, 2011 Farmers-Department of Labor Settlement Agreement" refers to employees employed at the work sites covered by the DOL agreement specified in the order who were tendered settlement checks by Farmers and were given WH-58 forms. See DKT No. 240 at 10-11.
B. Request by Plaintiffs to Clarify Application of Equitable Tolling
The court tolled the statute of limitations to "30 days after the first request for the production of the class list, " that is, February 24, 2012. See DKT No. 222 at 35, 27. Plaintiffs ask the court to clarify the application of its equitable tolling order as it relates to the DOL tolling agreement. Id. at 32-36.
The court hereby clarifies that the period covered by the court's tolling order and the period covered by the DOL tolling agreement do not "piggy back." Where the statutory period preceding the date of the tolling order and the DOL tolling agreement cover the same calendar day, a class member is entitled to only one day-not two-in calculating her statutory period.
The court further clarifies that the statute of limitations is tolled as of February 24, 2012, with the tolling period extending from that date until the date the class member opts-in to the collective action (assuming this occurs prior to ...