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Zurlo v. J & J Air Conditioning, Inc.

United States District Court, N.D. California

August 1, 2016



          NATHANAEL M. COUSINS United States Magistrate Judge

         This 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.


         “To 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 requirement).

         Courts 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.

         II. ANALYSIS

         A. Conditional Certification

         The 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”).

         Here, 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.

         Plaintiffs 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.

         Plaintiff 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.

         The 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.

         Together, 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).

         Defendants 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.

         The 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.

         B. Time For Recipients to Opt-In ...

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