United States District Court, N.D. California
ORDER GRANTING PRELIMINARY APPROVAL OF CLASS AND
COLLECTIVE ACTION SETTLEMENT RE: DKT. NO. 64
DONATO United States District Judge.
a wage-and-hour class and collective action brought by two
named plaintiffs on behalf of themselves and 519 fellow
current and former employees who performed asbestos abatement
and related work for defendant P.W. Stephens Environmental,
Inc. (“PWS”). The parties reached a proposed
settlement and now seek preliminary approval. The Court
grants preliminary approval and certifies the class for
purposes of settlement.
are current and former PWS employees who performed asbestos
abatement, lead removal, and mold remediation in California
during the class period. First Amended Complaint, Dkt. No. 62
¶ 3. PWS “is an environmental remediation company
that provides asbestos abatement and other environmental
remediation services to residence and commercial
buildings” throughout California. Id. ¶
3. The named plaintiffs allege that PWS violated the federal
Fair Labor Standards Act (“FLSA”) by failing to
pay employees minimum wages for all hours worked, failing to
provide overtime pay as warranted, and failing to make, keep,
and preserve adequate and accurate records of the same.
Id. ¶¶ 35-52. Plaintiffs also allege
additional wage and hour violations under California law,
including failures to pay proper wages, failures to provide
duty-free meal periods, failures to reimburse certain
employees for expenses related to use and maintenance of
company vehicles, and failures to pay all wages due upon
termination of employment. Id. ¶¶ 6,
53-110. Plaintiffs also bring California Private Attorney
General Act (“PAGA”) and unfair competition law
claims. Id. ¶¶ 111-125.
parties participated in a full-day mediation on March 9,
2016. Dkt. No. 64 at 6. In that session, they reached a
settlement for both the FSLA and Rule 23 classes. The parties
now ask the Court for preliminary approval of the settlement.
THE PROPOSED SETTLEMENT
proposed class consists of about 519 “individuals who
performed asbestos abatement, lead removal, mold remediation
and other services” while employed by PWS in California
during the class period, which runs from April 29, 2011
through August 21, 2015. Dkt. No. 64-5 at 3-4. Individuals
that worked for PWS through a third party, such as
subcontractors or staffing agencies, are not included in the
class. Id. The proposed FLSA collective action will
include the named plaintiffs and all class members who
“(a) cash a Settlement Check” and/or (ii)
formally opt in to the action “by filing a Consent to
Join.” Id. at 4.
the proposed settlement agreement, PWS will pay $1, 500, 000
into a non-reversionary settlement fund, which will be the
source of settlement administration costs (up to a maximum of
$19, 000), attorney’s fees and costs (up to a maximum
of $375, 000 in fees and up to $15, 000 in costs as decided
by the Court in subsequent proceedings), class representative
service awards for each of the two representatives if the
Court approves the request (totaling $10, 000), PAGA
penalties to the California Labor and Workforce Development
Agency, and monetary relief for the class. Dkt. No. 64-1
¶¶ 21-24, 28. PWS will separately pay the
employer’s share of payroll taxes on the amounts that
are paid to the class members for unpaid wages. Dkt. No. 64
at 3. Monetary relief for the class will be provided out of
the remaining net settlement fund of $1, 080, 000. Dkt. No.
64-1 at 8.
settlement fund will be distributed to the class “pro
rata based upon the number of compensable workweeks each
class member worked during the Class period, taking into
account their respective last known hourly wages, whether
they were assigned additional responsibilities as a Driver,
and whether they signed a release prior to this settlement
being reached.” Id. ¶ 22. The
approximately 426 class members who signed prior releases and
received a payment of $500 will have their payments reduced
by the amount of the prior payment received. Id.
¶ 23; Dkt. No. 64-5 at 5. By this mechanism, about $213,
000 will be reallocated and distributed to class members who
did not sign releases. Class members who did not sign
releases will receive a minimum settlement of $500. Dkt. No.
64-1 ¶ 23. Relief for class members with claims for
unpaid driving expense reimbursements will be enhanced by a
multiplier of 1.1. Dkt. No. 64-5 at 10.
class members do not have to submit claim forms to get a
settlement check -- checks will be mailed directly to each
class member and he or she will have 90 days to cash the
check. Dkt. 64 at 2-3. After 90 days, amounts attributable to
uncashed checks will be distributed to any qualifying class
member who demonstrates that he did not receive payment in
the first round. If the remainder amounts to more than $10,
000, a second round distribution to the class will take
place. Id. at 3. If the amount remaining from the
uncashed checks is less than $10, 000, the funds will be paid
to cy pres beneficiary California Rural Legal
Assistance, Inc. Dkt. No. 64-5 at 19.
the terms of the Settlement, all class members who do not opt
out will release PWS from all claims for:
all causes of action, claims, liens, demands, damages,
penalties, fines, wages, liquidated damages, restitutionary
amounts, attorneys' fees and costs, punitive damages,
controversies and liabilities which were or could have been
raised based on the facts, conduct, and/or omissions alleged
in the operative Complaint, … and predicated on the
foregoing wage and hour violations as well as on any FLSA
violation, during the Release Period.
Dkt. No. 64-5 at 19-20. FLSA Collective Action Members who
cash settlement checks will specifically release
“claims for (1) failure to pay minimum wage under the
federal FLSA and (2) underpayment of overtime under the
federal FLSA.” Dkt. No. 64-5 at 20. The release period
is defined as April 29, 2011 to June 9, 2016 for both sets of
claims, since preliminary approval occurred after June 9,
2016. Id. at 5. Each plaintiff for whom the Court
approves a service award also will provide a general release
of “all claims arising ...