Bobryk v. Durand Glass Manufacturing Co.

Citations: 50 F. Supp. 3d 637; 23 Wage & Hour Cas.2d (BNA) 895; 2014 U.S. Dist. LEXIS 137168; 2014 WL 4827493Docket: Civil No. 12-5360 (NLH)(JS)

Court: District Court, D. New Jersey; September 29, 2014; Federal District Court

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Plaintiffs’ motion for conditional certification of a collective action under the Fair Labor Standards Act (FLSA) has been granted, while the motion for class certification under Rule 23 for New Jersey state wage claims has been denied without prejudice. The plaintiffs, current or former employees of Durand Glass Manufacturing Company, allege unpaid overtime due to required pre- and post-shift tasks, including donning and doffing personal protective equipment (PPE). Prior to July 2012, Durand compensated employees only for scheduled work hours, and implemented a “seven minute” rounding policy afterward, which rounded clock-in and clock-out times to scheduled shifts but did not account for unpaid time when clocking in/out within the seven-minute window. Plaintiffs claim these practices violate the FLSA and New Jersey wage laws, seeking to represent themselves and others similarly situated. The court has jurisdiction based on federal question jurisdiction for FLSA claims and supplemental jurisdiction over state law claims.

Conditional certification under the Fair Labor Standards Act (FLSA) differs from class certification under Federal Rule of Civil Procedure 23, as it does not create an independent legal class or join additional parties. Instead, it allows a district court to facilitate notice to potential class members through a discretionary process. The Third Circuit employs a two-step approach to determine the appropriateness of collective actions under the FLSA. 

In the first stage, the court uses a lenient standard to assess whether plaintiffs have made a "modest factual showing" that employees are "similarly situated." If this burden is met, the court conditionally certifies the collective action to notify potential opt-in plaintiffs and conduct pre-trial discovery. Unlike traditional class actions, potential class members must opt-in by providing written consent, which is filed with the court.

The second stage occurs after discovery, where the court evaluates whether the opt-in plaintiffs are indeed similarly situated to the named plaintiffs. This determination can arise from motions for final certification by plaintiffs, decertification by defendants, or both. If plaintiffs meet the heavier burden at this stage, the case can proceed as a collective action. 

To maintain a collective action under FLSA § 216(b), it is required that (1) named plaintiffs demonstrate that potential class members are similarly situated, and (2) members must opt-in affirmatively. The burden of proof lies with the plaintiff to establish this similarity. In the current case, plaintiffs have met the evidentiary standard for conditional certification by providing sworn declarations regarding their work activities before and after shifts at Durand, supporting their claims.

Durand's employees are all hourly paid and subject to the same seven-minute rule, rounding policies, and overtime policy. While the required personal protective equipment (PPE) may differ by position, all employees must wear PPE at the beginning and remove it at the end of their shifts. This commonality establishes that the plaintiffs are similarly situated to other employees, justifying the granting of their motion for conditional certification for an 'opt-in' collective action under the Fair Labor Standards Act (FLSA).

In addition to the FLSA claim, plaintiffs seek class certification under New Jersey wage laws, necessitating an 'opt-out' approach under Federal Rule of Civil Procedure 23. This rule permits one or more members to sue on behalf of the entire class, requiring plaintiffs to meet the criteria of Rule 23(a) and one of the categories under Rule 23(b). The four requirements of Rule 23(a) are: (1) numerosity, where the class is too numerous for individual joinder; (2) commonality, where there are shared legal or factual questions; (3) typicality, where representative claims align with class claims; and (4) adequacy, ensuring representatives can protect class interests. The court must conduct a rigorous analysis of these elements, which may overlap with the merits of the claims.

If all four Rule 23(a) prerequisites are met, the plaintiffs may seek certification under one of the three classifications in Rule 23(b). In this case, plaintiffs aim for certification under Rule 23(b)(3), which requires that common questions of law or fact predominate over individual issues and that a class action is the superior method for resolving the dispute.

Factual determinations for Rule 23 findings must be established by a preponderance of the evidence, as noted in In re Hydrogen Peroxide. Mere assurances from a party about meeting requirements are insufficient. The Third Circuit has emphasized the necessity of ascertainability for classes certified under Rule 23(b)(3), highlighting that a class must be defined by objective criteria and that a reliable mechanism must exist to identify class members. This ascertainability requirement serves three primary objectives: it alleviates administrative burdens, ensures effective notice to absent class members, and protects defendants by clearly identifying those bound by the judgment. The ascertainability inquiry must assess whether the defendants' records can identify class members or if an alternative mechanism is feasible. The Third Circuit warns against methods relying solely on potential class members' assertions, as this could raise due process concerns. A class certification petition will fail if it relies on self-identification without additional reliability. In the current matter, plaintiffs' motion to certify a class of hourly production employees is denied due to their failure to demonstrate that all employees share the same pre- and post-shift duties, thus not meeting the ascertainability requirement.

Proposed class members are required to wear safety equipment, but additional requirements vary among employees, complicating the determination of compensation for pre- and post-shift activities. Individual analyses of each employee’s duties are necessary to ascertain compensation, which creates challenges in defining the class. Differences in pre-shift activities, such as the time taken for donning personal protective equipment (PPE) and engaging in personal tasks, lead to discrepancies in compensation. Plaintiffs failed to demonstrate a uniform class regarding pre- and post-shift routines, as sworn declarations revealed variations in individual duties among employees. Furthermore, there was no evidence that all employees engaged in uncompensated work after clocking in before the implementation of a seven-minute rule. Consequently, the plaintiffs did not meet the ascertainability requirement for class certification under Rule 23, leading to the denial of their motion for class certification, while their motion for conditional certification under the Fair Labor Standards Act (FLSA) was granted. An order consistent with this opinion will be issued.

Hybrid actions involve legal proceedings that utilize both "opt-in" and "opt-out" mechanisms. The Third Circuit has established that exercising jurisdiction over state law claims in hybrid actions is not inherently incompatible with the Fair Labor Standards Act (FLSA) opt-in procedure, as demonstrated in Knepper v. Rite Aid Corp., which also confirmed that state law claims are not preempted by the FLSA. Supplemental jurisdiction is permissible when federal and state claims arise from the same facts, as noted in Lyon v. Whisman, where district courts can entertain claims that are alternative theories of recovery. 

In appellate cases, class certification was vacated due to ascertainability issues, emphasizing that administrative feasibility requires a manageable process for identifying class members without extensive individual inquiry. The Third Circuit criticized a district court's view in Hayes, asserting that the defendant's poor recordkeeping does not lessen the plaintiff's burden to satisfy Rule 23 criteria. If a defendant lacks necessary records for class identification, the plaintiff must present a reliable method to ascertain class membership. Rule 23 mandates that class identification be administratively feasible and sufficiently numerous, and cannot be relaxed based on the assertion that the defendant’s records are inadequate.

The document also references individual declarations from employees illustrating variations in their pre- and post-shift duties, which highlight the specific responsibilities that may impact the ascertainability of the class.

Protective work gear is donned prior to the start of shifts, which involves checking emails for work orders and conducting visual inspections of specific areas to assess forklift maintenance needs. Post-shift duties include changing out of personal protective equipment (PPE) and performing general maintenance tasks such as checking lifts and fluid levels. Each employee's pre- and post-shift responsibilities are detailed, highlighting a routine of communication and equipment checks. 

Durand contends that the plaintiffs have failed to identify a clearly defined class regarding a seven-minute rounding policy, arguing that the practices are applied neutrally and that the time spent donning and doffing PPE is minimal (de minimis). The court's focus is on determining if a class can be ascertained and if it meets the requirements set forth in Rule 23. Although the court will conduct a thorough analysis of Rule 23 prerequisites, this does not equate to resolving the case's merits during class certification. The potential for defining a more specific class of hourly employees impacted by the seven-minute policy or creating subclasses based on PPE levels or time needed for duties is acknowledged, but the court cannot conclude at this stage whether these parameters would meet Rule 23 standards.