United States District Court, E.D. California
ORDER GRANTING STIPULATION FOR CONDITIONAL
CERTIFICATION AND APPROVAL OF FACILITATED CLASS NOTICE (Doc.
Henry Seguin is an employee of defendant County of Tulare
(“County”). (Doc. No. 1 ¶ 3.) In accordance
with County policy, plaintiff and those similarly situated
received monetary compensation in lieu of some or all of
certain County-sponsored health benefits. (See Id.
¶¶ 24-25.) 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.
¶¶ 19, 21, 26.) 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. 24.) Therein, the parties agree that this FLSA
collective action should be conditionally certified on behalf
of “all current and former non-exempt employees of the
Defendant who were paid overtime pursuant to the FLSA and
received cash in lieu of health benefits payments within the
same pay period, at any time since August 25, 2013.”
(See Doc. No. 24-1 ¶ 2.) 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. 24-2.)
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 has identified no binding Ninth
Circuit or Supreme Court authority interpreting that term.
However, 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 facilitated class
notice (Doc. No. 24) is granted;
2. The court conditionally certifies this FLSA collective
action for a class comprising all current and former
non-exempt employees of the Defendant who were paid overtime
pursuant to the FLSA and received cash in lieu of health
benefits payments within the same pay period, at any time
since August 25, 2013;
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