United States District Court, E.D. California
JASON FEIN, on behalf of himself and all similarly situated individuals, Plaintiff,
CITY OF BENICIA, Defendant.
MEMORANDUM AND ORDER
MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff's Renewed Motion for
Conditional Certification and Facilitated Notice, ECF No. 22,
under the Fair Labor Standards Act (“FLSA”), 29
U.S.C. §§ 201-19. Plaintiff previously moved for
conditional certification and facilitated notice, ECF No. 6,
but that motion was denied for failure to “meet the
lenient standard for conditional certification, ” ECF
No. 12, at 4. Plaintiff has now met his burden as set forth
below, and his motion is accordingly GRANTED.
Jason Fein is a fire captain employed by Defendant City of
Benicia. As part of his compensation, Plaintiff has the
option of declining health benefits and receiving cash
instead. Plaintiff has exercised this option. In this
lawsuit, Plaintiff alleges that his “regular
rate” of pay for purposes of calculating overtime
compensation under the FLSA should have, but did not, include
these cash-in-lieu-of-health-benefits payments. That is,
Plaintiff contends he was underpaid for overtime work, which
is to be paid at one-and-a-half times his regular rate of
is party to a collective bargaining agreement, and thus his
fellow employees were given the same option. Plaintiff
therefore contends that his fellow fire captains are
“similarly situated” under the FLSA if they also
opted for cash in lieu of health benefits and worked
overtime. Plaintiff also identifies four other collective
bargaining agreements-called memorandums of understanding
(“MOUs”)-in force between Defendant and other
types of workers that contain similar options to collect cash
instead of health benefits. Accordingly, Plaintiff claims
that employees subject to these other MOUs who also opted for
cash in lieu of health benefits and worked overtime are
“similarly situated” under the FLSA.
light of these arguments, Plaintiff seeks conditional
certification of the following class under the FLSA:
“any and all current or former employees of the City of
Benicia who have worked overtime and received cash payments
in lieu of health care benefits within the same pay period at
any time since June 27, 2013.” Pl.'s Renewed Mot.
for Conditional Certification (“Pl's Mot.”),
ECF No. 22, at 1.
[C]ourt's determination of whether a collective action is
appropriate is discretionary. Plaintiffs bear the burden of
showing that they and the proposed class are similarly
situated for purposes of [29 U.S.C. § 216(b)]. The term
‘similarly situated' is not defined under the FLSA
and the Ninth Circuit has yet to address the issue.”
Adams v. Inter-Con Sec. Sys., Inc., 242 F.R.D. 530,
535-36 (N.D. Cal. 2007) (citations omitted). “While
courts have employed several approaches to interpret whether
the parties are ‘similarly situated, ' this Court
follows a two-tiered case-by-case approach.”
Rodriguez v. SGLC, Inc., No. 2:08-cv-01971-MCE-KJM,
2009 WL 454613, at *1 (E.D. Cal. Feb. 5, 2009) (quoting
Adams, 242 F.R.D. at 536).
The first step under the two-tiered approach considers
whether the proposed class should be given notice of the
action. This decision is based on the pleadings and
affidavits submitted by the parties. The court makes this
determination under a fairly lenient standard due to the
limited amount of evidence before it. . . . In the second
step, the party opposing the certification may move to
decertify the class once discovery is complete and the case
is ready to be tried.
Id. (ellipsis in original) (quoting Adams,
242 F.R.D. at 536).
this two-tiered approach, courts also vary on what satisfies
the “fairly lenient standard” required under the
first step. Some require only that plaintiffs demonstrate the
existence of a common plan or policy. See, e.g.,
Pereira v. Foot Locker, Inc., 261 F.R.D. 60, 67-68
(E.D. Pa. 2009). Others follow a “hybrid”
approach that also looks to whether the work duties of the
class members are sufficiently similar. See, e.g.,
Smith v. Tradesmen Int'l, Inc., 289 F.Supp.2d
1269, 1372 (S.D. Fla. 2003).
support of his prior motion for conditional certification and
facilitated notice, “Plaintiff provide[d] only his
declaration that he is ‘aware of other fire captains
who are subject to' Defendant's allegedly unlawful
payment scheme and his attorney's declaration that he is
‘informed and believe[s]' that other City employees
fit into the proposed class.” Mem. & Order, at 4.
The Court denied that motion because “Plaintiff ha[d]
not specifically identified a single other potential
plaintiff and thus c[ould not] meet the lenient standard for
conditional certification.” Id.; see also
Adams, 242 F.R.D. at 536 (“[T]he named plaintiff
must demonstrate that there existed at least one similarly
situated person . . . .”).
remedy the defects of his prior motion, Plaintiff now
provides declarations from other firefighters that they
received cash in lieu of health benefits, worked overtime,
and did not have those cash payments figured into their
regular rate of pay for overtime pay calculation purposes.
See Decl. of Carl Littorno, ECF No. 22-4; Decl. of
David Calkins, ECF No. 22-5; Decl. of Drake Martin, ECF No.
22-6; Decl. of Gregory Peterson, ECF No. 22-7. Plaintiff also
provides declarations from police officers-who are governed
by a different one of the five MOUs the City has with its
various employees-who were also subject to this allegedly
unlawful practice. See Decl. of Majonne Roberson,
ECF No. 22-8; Decl. of Sergio Cruz, ECF No. 22-9. Plaintiff
argues that these declarations demonstrate “Defendant
uniformly applies [the challenged] policy to all current and
former employees regardless of job classification, bargaining
unit[, ] or whether they were covered by a ...