United States District Court, E.D. California
ORDER RE: MOTION FOR CONDITIONAL CERTIFICATION AND
FACILITATED NOTICE PURSUANT TO 29 U.S.C. §
WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE
Jesus Rodriguez and Rigoberto Loa brought this action against
defendants RCO Reforesting, Inc. (“RCO”) and
Roberto Ochoa, asserting various wage and hour and employment
law claims under federal and California law. (First Am.
Compl. (“FAC”) (Docket No. 24).) Presently before
the court is plaintiffs' Motion to conditionally certify
this action as an FLSA collective action and issue notice to
similarly situated individuals under 29 U.S.C. § 216(b).
(Pls.' Mot. (Docket No. 28).)
employed plaintiffs as temporary forestry workers pursuant to
the H-2B visa program. (Docket No. 26-1, Ex. 3
(“Rodriguez Decl.”) ¶ 2; id., Ex. 4
(“Loa Decl.”) ¶ 2.) Plaintiffs allege that
defendants had a policy of not paying plaintiffs for overtime
work and not reimbursing plaintiffs for their travel and visa
costs, as required by the H-2B visa program. (FAC
¶¶ 1, 23-26.) Defendants' alleged failure to
reimburse travel and visa costs reduced plaintiffs' first
week pay to below minimum wage. (Id. ¶¶
49-52.) These practices, according to plaintiffs, are in
violation of sections 206 and 207 of the FLSA. (See
Id. at 10-12.) Plaintiffs seek to conditionally
certify this action as an FLSA collective action and issue
notice to current and former employees who were subject to
the above-described practices.
may bring suits for violations of the FLSA on their own
behalf and on behalf of “other employees similarly
situated.” 29 U.S.C. § 216(b). The FLSA does not
define the term “similarly situated, ” and
neither the Supreme Court nor the Ninth Circuit has offered
further clarification. Brown v. Citicorp Credit Servs., Civ.
No. 1:12-62 BLW, 2013 WL 4648546, at *2 (D. Idaho Aug. 29,
2013). However, the Supreme Court “has indicated that a
proper collective action encourages judicial efficiency by
addressing in a single proceeding claims of multiple
plaintiffs who share ‘common issues of law and fact
arising from the same alleged [prohibited]
activity.'” Id. (quoting Hoffmann-La
Roche, Inc. v. Sperling, 493 U.S. 165, 170 (1989)).
courts in the Ninth Circuit typically follow a two-step
process for FLSA actions. Id.; see also Velasquez v.
HSBC Fin. Corp., 266 F.R.D. 424, 427 (N.D. Cal. 2010)
(listing cases). The district court first determines whether
to conditionally certify the proposed class and send notice
of the action based on the submitted pleadings and
affidavits. Murillo v. Pac. Gas & Elec. Co., 266 F.R.D.
468, 471 (E.D. Cal. 2010). After discovery and when the case
is ready for trial, the court then engages in a more
searching review of whether the plaintiffs are similarly
situated, often triggered by a motion to decertify by the
defendant. Id.; Velasquez, 266 F.R.D. at 427.
the lack of discovery and limited evidence available, courts
apply a lenient standard to the first-step determination,
which usually results in conditional class certification.
Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 467 (N.D.
Cal. 2004). This step “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. However, a
plaintiff must supply “some modest evidentiary
showing” beyond his or her own conclusory allegations,
and the court need not rely on representations that indicate
a lack of personal knowledge regarding alleged employer
practices. Brown, 2013 WL 4648546, at *1-3.
plaintiffs seek to conditionally certify an FLSA class
defined as “[a]ll non-exempt workers employed by
Defendants at any time between May 5, 2014 through the
present, either under the terms of an H-2B job order or who
were engaged in corresponding employment.” (Pls.'
Proposed Order (Docket No. 26-2.) In support of their
request, plaintiffs submit affidavits and copies of
defendants' H-2B applications for temporary employment
for 2013 through 2016, which defines the scope of the H-2B
visa workers' job duties. (See Docket No. 26-1, Ex. 2.)
plaintiffs attest that they were “not paid overtime for
the hours [they] worked more than eight hours a day”
and were “not paid more than 40 hours per week
regardless of how many hours [they] actually worked.”
(Rodriguez Decl. ¶ 15; see Loa Decl. ¶ 12.) They
also allegedly were not reimbursed for their visa costs or
travel costs from Mexico to the company office in Yreka,
(Rodriguez Decl. ¶¶ 7-8; Loa Decl. ¶¶
5-7), which resulted in earning below minimum wage during
their first work week, (FAC ¶ 52). Rodriguez
additionally declares that he was “not paid for the
time [he] spent traveling from [his] lodging to the work site
and back to [his] lodging, ” which was upwards of three
hours each way, further reducing his wages. (Rodriguez Decl.
¶¶ 12, 15.) Both employees were aware that some
fellow employees were subjected to the same conditions
because they witnessed such conduct and discussed these
issues with their fellow employees. (Id.
¶¶ 8, 15; Loa Decl. ¶¶ 5, 7, 12.)
proposed class is overly broad because there are not
“substantial allegations that the putative class
members were subject to a single illegal policy, plan or
decision.” See Murillo, 266 F.R.D. at 471. The class
must be limited to those individuals who have FLSA claims.
See id. (conditionally certifying a class where
“defendant engaged in a uniform policy toward all class
members”). For example, in Adams v. Inter-Con Security
Systems, Inc., 242 F.R.D. 530, 536 (N.D. Cal. 2007), the
court conditionally certified a class of all current and
former security officers who worked for defendants between
certain dates because the allegations and affidavits
indicated that no security officers were ever paid overtime
wages. See also Leuthold, 224 F.R.D. at 468-69 (conditionally
certifying a class of all tour directors and managers working
for defendant because there was evidence that defendants
never paid overtime).
plaintiffs do not allege that defendants had a policy of
never reimbursing travel costs and never paying overtime.
Plaintiffs' counsel affirmed this position at oral
argument. Yet plaintiffs' proposed class includes all
H-2B workers and all workers in corresponding employment,
which implies defendants never reimbursed costs or paid
overtime. In other words, the class includes workers who have
no FLSA claim. This deficiency defeats plaintiffs'
must limit their proposed class to individuals who were
subjected to defendants' alleged FLSA wage violations. At
the very least, plaintiffs must narrow their proposed class
to non-exempt workers employed by defendants at any time
between May 5, 2014 through the present, either under the
terms of an H-2B job order or who were engaged in
corresponding employment who either were not paid for
overtime or were not reimbursed for their travel and visa
costs such that they made less than minimum wage.
have not met the required showing for conditional
certification. While their allegations and affidavits may
suffice to conditionally certify some narrower class, the
allegations do not justify conditionally certifying a class
composed of all non-exempt H-2B visa workers and those in
corresponding employment, regardless of whether they were
subjected to FLSA violations. It is not for the court to
rewrite the request to certify a different class than the one
found that conditional certification of plaintiffs'
proposed class is not proper, the court need not address
plaintiffs' proposed notice and notice plan. See Kress v.
PricewaterhouseCoopers, LLP, 263 F.R.D. 623, 628 (E.D. Cal.
2009) (Karlton, J.) (“If the court finds initial
certification appropriate, it may order notice to be
delivered to potential plaintiffs.” (citing Hoffmann-La
Roche, 493 U.S. at 172)).
THEREFORE ORDERED that plaintiffs' Motion for conditional
certification of this action as an FLSA collective action and
issuance of notice to class members (Docket No. 26) ...