United States District Court, N.D. California
ORDER GRANTING CONDITIONAL FLSA CLASS CERTIFICATION;
APPROVING NOTICE; APPROVING PERIOD OF TOLLING OF STATUTE OF
LIMITATIONS RE: DKT. NO. 22
NATHANAEL M. COUSINS United States Magistrate Judge
case involves allegations that service technicians in the
Heating, Ventilation and Air Conditioning (HVAC) industry
were not properly paid overtime and minimum wage. Plaintiffs
move for conditional class certification for their Fair Labor
Standards Act (FLSA) collective action so that they can send
an opt-in Notice to approximately 32 service technicians to
provide them with the choice of whether or not to participate
in the lawsuit. The parties have stipulated to the content of
the Notice that will be sent to potential plaintiffs who will
choose to opt-in or not participate in the suit. The approved
Notice is attached to this order. The parties have also
stipulated to toll the statute of limitations from June 10,
2016, to July 1, 2016. Because Plaintiffs have met the
lenient standard of showing that their potential plaintiffs
are similarly situated, the Court GRANTS their motion for
conditional FLSA class certification and GRANTS permission to
send the stipulated opt-in Notice. The Court also tolls the
statute of limitations from June 10 to July 1.
maintain a collective action under the FLSA a plaintiff must
demonstrate that the putative collective action members are
similarly situated.” Murillo v. Pac. Gas &
Elec. Co., 266 F.R.D. 468, 470 (E.D. Cal. 2010); see
also Vasquez v. Coast Valley Roofing, Inc., 670
F.Supp.2d 1114, 1123-24 (E.D. Cal. 2009) (noting that a
plaintiff has the burden of proving the similarly situated
in the Ninth Circuit have adopted a two-step approach for
determining whether a class is “similarly
situated.” Murillo, 266 F.R.D. at 470-71.
First, the court “determines, based on the submitted
pleadings and affidavits, whether the proposed class should
be notified of the action.” Id. “Courts
have emphasized that a fairly lenient standard is used at the
first step because a court does not have much evidence at
that point in the proceedings-just the pleadings and any
declarations submitted.” Harris v. Vector Mktg.
Corp., 716 F.Supp.2d 835, 837-38 (N.D. Cal. 2010).
District courts have held that conditional certification
requires only that “plaintiffs make substantial
allegations that the putative class members were subject to a
single illegal policy, plan or decision.”
Murillo, 266 F.R.D. at 471.
issue now before the Court is whether Plaintiffs’ case
should be conditionally certified at the first stage. Under
the lenient standard used at the first stage, a plaintiff
show that “there is some factual basis beyond the mere
averments in their complaint for the class
allegations.” Murillo, 266 F.R.D. at 478-80
(internal quotation marks omitted); see also Felix v.
Davis Moreno Constr., Inc., 2008 WL 4104261 (E.D. Cal.
Sept. 3, 2008) (“[t]he evidence must show there is some
factual nexus which binds the named plaintiffs and the
potential class members together as victims of a particular
alleged policy or practice”).
Plaintiffs’ stated class includes all service
technicians who worked for the named Defendants after June
10, 2013. Dkt. No. 22 at 6. Plaintiffs state that the class
list they have most recently received from Defendants shows
“that from February 11, 2012, Defendants employed 32
technicians.” Dkt. No. 29 at 2. Plaintiff Zurlo
“estimates that there have been twenty-two (22) to
twenty-six (26) Service Technicians in the last three years
of his employment. This estimate is based on the attendance
at the meetings of 19 to 22 active technicians plus modest
turnover.” Dkt. No. 22 at 4-5. Plaintiffs assert that
the class is “insular and comprised of similarly
situated service technicians” because it
“includes all Service Technicians who drove service
vans which all needed restocking and servicing. It also
includes the Service Technicians who attended unpaid work
related meetings. Finally, it includes those Service
Technicians who worked on client accounts in which the work
hours appear to have been dictated by the billable
hours.” Id. at 6.
have attached three declarations to the motion for
conditional certification. The first is a declaration from
plaintiff Aaron Zurlo in which he describes work tasks as an
HVAC service technician that he alleges he was not
compensated for. Dkt. No. 23 at 3. He states that “it
was impossible for a Service Technician not to perform this
work and still perform their job functions. By that I mean,
all Technicians necessarily performed the work I am giving
examples of.” Id. This allegedly uncompensated
work included going to weekly and bi-weekly meetings,
servicing, restocking, and cleaning assigned vans, performing
peer reviews of each other’s vans, annual forklift
training and certification, and completing paperwork.
Id. at 6. He states that neither he nor any of his
fellow service technicians were paid for this work, and that
all service technicians had to complete the tasks.
Matthew Shearer is also a service technician on HVAC systems,
and submitted a similar declaration in support of conditional
certification. Dkt. No. 24. He declares that he was not paid
to attend regular weekly and bi-weekly meetings, to service,
restock, or clean his van, conduct peer reviews, or attend
annual forklift training. Id. at 2-3. He also
alleges he was not reimbursed for his tools or paid for
overtime for hours worked in excess of 40 hours per week.
Id. at 3 He notes that his declaration does not
contain a list of all tasks he did without being compensated,
and are just some examples. Id. Both Zurlo and
Shearer declare that the other service technicians they
worked with were similarly only paid for hours that could be
billed to clients, and therefore not paid for tasks that all
service technicians had to perform to do their jobs.
same is true for the third declaration by plain Hector Rosas.
Dkt. No. 25. Rosas states that he was not compensated for
tasks such as “ongoing training and certification,
teaching a group of his coworkers a class an HVAC repair and
maintenance, and maintaining his work vehicle, among other
things.” Id. at 2.
the three declarations give examples of common tasks that
Plaintiffs allege all service technicians were required to do
but were not compensated for. With very little variation, the
declarations list the same tasks and work, and assert that
all technicians were required to perform the listed tasks.
Camp v. Progressive Corp., 2002 WL 31496661, at *12
(E.D. La. Nov. 8, 2002) (holding that “the existence of
some variations between potential claimants is not
determinative of lack of similarity at the
notice-stage.”) (emphasis in original).
do not present arguments that the Plaintiffs have failed to
meet the low threshold required for the notice-stage
standard. Dkt. No. 27 at 2. They state that they will move to
decertify the class after discovery. Id.
Court finds that Plaintiffs have made an adequate showing
here that the proposed FLSA class is similarly situated for
the lenient first step standard. See Benedict v.
Hewlett-Packard Co., No. 13-cv-00119 LHK, 2014 WL
587135, at *12-13 (N.D. Cal. Feb. 13, 2014) (finding that the
plaintiffs had “met the lenient notice-stage standard
for conditional certification. If, after the close of
discovery, it becomes apparent that Plaintiffs’
overtime claims should be pursued on an individual basis, HP
may move to decertify the class.”) (class decertified
at the second stage in Benedict v. Hewlett-Packard
Co., No. 13-cv-00119 BLF, 2016 WL 3742342, at *1 (N.D.
Cal. July 13, 2016)). Therefore, the Court conditionally
certifies the class and will permit the Notice to be sent to
individuals on the class list.
Time For Recipients to Opt-In ...