United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR CONDITIONAL CERTIFICATION
Re: Dkt. No. 29
HAYWOOD S. GILLIAM, Jr., District Judge.
Pending before the Court is Plaintiff Lannden Bower's motion for conditional certification of a collective action pursuant to Fair Labor Standards Act ("FLSA") § 216(b). For the reasons stated below, the motion is GRANTED IN PART and DENIED IN PART.
On June 11, 2014, Plaintiff filed this class, collective, and representative action against his former employer Defendant Cycle Gear, Inc. alleging violations of FLSA and related state claims. Dkt. 1 ("Compl."). In relevant part, Plaintiff alleges that Defendant violated FLSA by failing "to include all forms of Incentive Pay when calculating Plaintiff's regular rate of pay, thereby causing Plaintiff to be underpaid all of his required overtime wages." Compl. ¶ 13.
Plaintiff filed the present motion for conditional certification of a collective action on March 12, 2015. Dkt. 29 ("Mot.").
A. Legal Standard
FLSA provides employees with a private right of action to sue an employer for violations of the Act "for and in behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). Neither the FLSA nor the Ninth Circuit has defined "similarly situated, " but the Supreme Court has indicated that a collective action should encourage judicial efficiency by addressing in a single proceeding claims of multiple plaintiffs who share "common issues of law and fact arising from the same alleged [prohibited] activity." Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 170 (1989).
District courts in the Ninth Circuit adhere to a two-stage certification procedure for collective actions brought under FLSA. See Gilbert v. Citigroup, Inc., No. 08-cv-00385-SC, 2009 WL 424320, at *1 (N.D. Cal. Feb. 18, 2009) (listing cases). First, the district court "makes an initial notice stage' determination of whether plaintiffs are similarly situated, deciding whether a collective action should be certified for the purpose of sending notice of the action to potential class members." Lewis v. Wells Fargo & Co., 669 F.Supp.2d 1124, 1127 (N.D. Cal. 2009). At this stage, courts apply a "lenient [standard] that typically results in certification." Id. The movant need present the court with "nothing more than substantial allegations that putative class members were together the victims of a single decision, policy, or plan" in order to make a sufficient showing for certification. Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001) (internal quotations omitted); see Prentice v. Fund for Pub. Interest Research, Inc., No. 06-cv-07776-SC, 2007 WL 2729187, at *2 (N.D. Cal. Sept. 18, 2007).
Once a FLSA collective action class is certified at the notice stage, district courts are authorized to monitor the "preparation and distribution" of notice to putative class members. Hoffman-La Roche, 493 U.S. at 172. To join the FLSA collective action, an employee must affirmatively opt in by filing a written "consent to join" in the court where the action is pending. Id.
The second stage of certification occurs at the close of discovery and is "usually prompted by a defendant's motion for decertification." Ramirez v. Ghilotti Bros., Inc., 941 F.Supp.2d 1197, 1203 (N.D. Cal. 2013). Courts apply a stricter certification standard at that point and review several factors to determine the "propriety and scope of the class, " including "(1) the disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to the defendants with respect to the individual plaintiffs; and (3) fairness and procedural considerations." Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 467 (N.D. Cal. 2004).
B. Section 216(b) Conditional Certification
Defendant does not contest that it "inadvertent[ly] fail[ed] to include certain bonuses, commissions, and spiffs in [certain] employees' regular rate when calculating overtime." Dkt. 38 ("Opp.") at 2. As a result, "[a]t this stage of the certification process, [Defendant] does not oppose Plaintiff's Motion wholesale." Id. at 4. The Court therefore finds it is appropriate to conditionally certify a collective action of hourly non-exempt Cycle Gear employees in this case.
However, the parties disagree regarding the proper scope of the collective action class. Specifically, the parties dispute 1) whether the statute of limitations should be equitably tolled as of October 2014; and 2) whether the collective action should include employees hired ...