United States District Court, E.D. California
ORDER GRANTING STIPULATION FOR CONDITIONAL
CERTIFICATION AND APPROVAL OF CLASS NOTICE (DOC. NO.
Mark Kerzich and Timothy Wertz are employees of defendant
County of Tuolumne (“County”). (Doc. No. 1 ¶
1.) In accordance with County policy, plaintiffs and those
similarly situated elected to receive monetary compensation
in lieu of some or all of certain County-sponsored health and
cafeteria-based benefits. (See Id. ¶¶ 14,
15, 18, 19.) Plaintiffs allege that, for the three years
prior to the commencement of this action, the County failed
to include these in-lieu payments in its calculation of
plaintiffs' regular rate of pay, resulting in an
underpayment of overtime compensation. (Id.
¶¶ 18, 19.) Plaintiffs further allege that
defendant's failure to fully compensate them and others
similarly situated constitutes a violation of the Fair Labor
Standards Act, 29 U.S.C. § 201 et seq.
(“FLSA”). See Flores v. City of San
Gabriel, 824 F.3d 890, 895 (9th Cir. 2016) (holding that
cash payments in lieu of health benefits “must be
included in the regular rate of pay and thus in the
calculation of the overtime rate” under the FLSA).
before the court is the parties' stipulation for
conditional certification of a collective action and for
approval of class notice pursuant to the Fair Labor Standards
Act. (Doc. No. 37.) Therein, the parties agree that this FLSA
collective action should be conditionally certified on behalf
of “all persons employed by the County as a non-exempt
employee who worked some overtime between July 28, 2013 and
the date of the Court's order approving this
Stipulation.” (Id. at 3.) In addition, the
parties submit a proposed notice to potential plaintiffs
outlining the nature of the collective action and steps by
which similarly situated individuals may take to participate
in this lawsuit. (See Doc. No. 37-1.)
to the FLSA, an employee may file a civil action, on behalf
of himself and other employees similarly situated, against an
employer that fails to adhere to federal minimum wage and
overtime law. 29 U.S.C. § 216(b); see also Genesis
Healthcare Corp. v. Symczyk, 569 U.S.__, 133 S.Ct. 1523,
1527 (2013). Unlike a class action brought under Rule 23 of
the Federal Rules of Civil Procedure, similarly situated
employees can join an FLSA collective action only if they
opt-in by giving written consent to be joined. 29 U.S.C.
FLSA does not define the term “similarly situated,
” and this court finds no binding Ninth Circuit or
Supreme Court authority interpreting that term. Accordingly,
district courts in this circuit have used a two-step approach
to decide whether potential FLSA plaintiffs are similarly
situated. See, e.g., Kellgren v. Petco Animal
Supplies, Inc., No. 13CV644 L KSC, 2015 WL 5167144, at
*2 (S.D. Cal. Sept. 3, 2015); Syed v. M-I, L.L.C.,
No. 1:12-cv-01718-AWI-MJS, 2014 WL 6685966, at *2 (E.D. Cal.
Nov. 26, 2014); Troy v. Kehe Food Distributors,
Inc., 276 F.R.D. 642, 649 (W.D. Wash. 2011); Lewis
v. Wells Fargo Co., 669 F.Supp.2d 1124, 1127 (N.D. Cal.
2009); Leuthold v. Destination Am., Inc., 224 F.R.D.
462, 467-68 (N.D. Cal. 2004); Wynn v. National Broad.
Co., 234 F.Supp.2d 1067, 1082 (C.D. Cal. 2002). In the
first step, district courts may conditionally certify the
proposed class based on consideration of the parties'
pleadings and affidavits. Leuthold, 224 F.R.D. at
467. This determination is made under a “lenient
standard”-requiring a preliminary determination that
notice is appropriate and that “the putative class
members were together the victims of a single decision,
policy, or plan.” Lewis, 669 F.Supp.2d at 1127
(citing Thiessen v. General Elec. Capital Corp., 267
F.3d 1095, 1102 (10th Cir. 2001)). “The sole
consequence of conditional certification is the sending of
court-approved written notice to employees.”
Genesis Healthcare, 133 S.Ct. at 1530 (citing
Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165,
171-72 (1989)). District courts have the authority to
facilitate notice to potential plaintiffs and may set a
deadline for plaintiffs to opt in. Does I thru XXIII v.
Advanced Textile Corp., 214 F.3d 1058, 1064 (9th Cir.
2000) (citing Hoffmann-La Roche, 493 U.S. at 169).
In the second step, after class members have opted in and
discovery has taken place, the party opposing class
certification may seek to decertify the class.
Leuthold, 224 F.R.D. at 467.
on the parties' pleadings and stipulation, the court is
satisfied that conditional certification of the collective
action is warranted. In addition, the court finds that good
cause exists to approve the proposed notice of collective
action, and that the parties have proposed a reasonable
deadline for potential plaintiffs to opt in to the case.
1. The parties' stipulation for conditional certification
of a collective action and for approval of class notice (Doc.
No. 37) is granted;
2. The court conditionally certifies this FLSA collective
action for a class comprising all persons employed by the
County as a non-exempt employee who worked some overtime
between July 28, 2013 and the date of entry of this order;
3. The court approves the proposed class notice (Doc. No.
4. The parties are ordered to prepare and distribute the
class notice to potential plaintiffs in a manner consistent