McGlone v. Contract Callers, Inc.

Citations: 867 F. Supp. 2d 438; 19 Wage & Hour Cas.2d (BNA) 212; 2012 U.S. Dist. LEXIS 49702; 2012 WL 1174722Docket: No. 11 Civ. 3004

Court: District Court, S.D. New York; April 9, 2012; Federal District Court

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Plaintiff Michael McGlone has filed a motion for conditional certification under 29 U.S.C. § 216(b) to pursue a collective action against Contract Callers, Inc. (CCI) and its officers for violations of the Fair Labor Standards Act (FLSA). The complaint, initiated on May 3, 2011, alleges failure to pay overtime for work done before and after recorded hours and during meal breaks. The motion was submitted for review on December 15, 2011. 

CCI, based in Augusta, Georgia, operates 12 divisions and employs approximately 500 individuals, with about half serving as Field Service Representatives (FSRs). Each division operates independently regarding scheduling and payroll, overseen by a general manager who reports to CCI's President, William "Tim" Wertz. CCI provides an employee manual stating that it will pay overtime according to applicable laws.

McGlone, employed as an FSR in the Queens division from May 2008 to August 2010, recounts that he was required to perform tasks before officially logging in at 8 a.m., including attending mandatory meetings and loading supplies. Despite these additional hours, he was instructed to record only 40 hours weekly, as overtime was not paid. He also noted similar experiences among coworkers, corroborating his claims of widespread overtime violations. Another FLSA case against CCI, Evans v. Contract Callers, Inc., supports the existence of a common legal and factual basis for the collective action. The court has granted the motion in part and denied it in part, as outlined in the opinion.

On November 16, 2011, the court denied Evans' motion for conditional class certification, ruling that he did not provide sufficient evidence to show that the putative class members were victims of a common decision or policy by Contract Callers, Inc. The court highlighted that Evans' circumstances were notably different from those of Mr. McGlone, who faced reprimands for attempting to record overtime, while Evans' office compensated employees for missed lunch breaks when notified. Under the Fair Labor Standards Act (FLSA), employees must be "similarly situated" to proceed collectively. The court has discretion to notify potential class members about the action, which is based on a two-step process established by the Second Circuit. The first step involves a lenient initial review to determine if potential opt-in plaintiffs are similarly situated concerning a FLSA violation. If so, the court conditionally certifies the class and authorizes notices. The second stage, conducted after discovery, involves a stricter assessment to confirm whether the opted-in plaintiffs are indeed similarly situated, allowing for the potential decertification or subclassing of the group. The initial determination is preliminary and can be revisited, resulting in a low burden of proof for plaintiffs at the first stage.

The Plaintiff's motion requests conditional certification for discovery and judicial notice, initiating the first step of a two-step analysis. Courts apply a lenient standard for conditional certification, though it is not automatic. The Plaintiff must provide a "modest factual showing" that proposed class members are "similarly situated" and victims of a common unlawful policy or plan. This preliminary notice stage requires evidence of a factual nexus indicating that potential plaintiffs were subjected to a shared discriminatory scheme. The proposed FLSA class includes individuals who worked as Field Service Representatives (FSRs) for the Defendants from July 1, 2008, to the present. Eligibility to opt-in requires individuals to claim they experienced automatic time deductions for breaks or performed work-related tasks before clocking in or after punching out. The proposed class comprises several hundred FSRs across multiple states, all sharing common issues, including: (1) needing to arrive early for preliminary activities, (2) having time deducted for meal breaks despite not taking them, (3) performing duties after official work hours, and (4) being compensated for fewer hours than required under the FLSA.

Commonality for the proposed class has not been established. Affidavits or declarations based on "information or belief" rather than personal knowledge are inadmissible as evidence. In the context of the Fair Labor Standards Act (FLSA), allegations regarding improper pay practices that lack personal knowledge, such as McGlone's claims about company-wide policies, fail to meet the burden for nationwide collective action. Courts have previously limited notice to employees at specific locations when plaintiffs did not demonstrate that a company-wide unlawful policy existed beyond their facility. For instance, in Camper v. Home Quality Mgmt. Inc., although a company-wide policy was preliminarily established, the court ruled that without evidence of knowledge of unpaid work extending beyond Maryland, nationwide certification was inappropriate. Other cases similarly denied nationwide certification when plaintiffs only provided evidence from a single location, failing to show that their experiences were indicative of a national policy. Examples include Villanueva-Bazaldua v. TruGreen Ltd. Partners and England v. New Century Fin. Corp., where insufficient evidence of a broader illegal policy led to denials of certification. Ultimately, anecdotal evidence and unsubstantiated claims do not suffice to justify a nationwide action.

A modified class certification is deemed appropriate, as McGlone has established personal knowledge of policy violations and supervisor directives specific to his district, satisfying the commonality requirement for FSRs in the New York Division. Courts have similarly restricted class notices to employees of a single corporate entity when evidence of widespread violations is lacking. Equitable tolling of the statute of limitations is warranted in FLSA collective actions, allowing the limitations period to pause during court deliberations on class certification motions. This approach prevents inequitable outcomes for plaintiffs actively pursuing their claims amid court delays. Consequently, the motion for a nationwide class certification is denied, while conditional certification for FSRs in the New York Division is granted, with parties instructed to submit a corresponding order.