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Novick v. Shipcom Wireless, Inc.

United States District Court, S.D. Texas, Houston Division

April 12, 2017

JUSTIN NOVICK, CHRIS KEHN, JAMES ABRAHAM, AND ZAHID ISLAM, on behalf of themselves and Others similarly situated, Plaintiffs,
v.
SHIPCOM WIRELESS, INC., Defendant.

MEMORANDUM AND ORDER ON PLAINTIFFS' REQUEST FOR CLASS CERTIFICATION AND MOTION FOR NOTICE TO POTENTIAL CLASS MEMBERS

          MARY MILLOY UNITED STATES MAGISTRATE JUDGE.

         Pending before the court[1] is Plaintiffs' request for an order allowing this action to proceed as a representative collective action under the Fair Labor Standards Act (“FLSA”)[2], and Plaintiffs' Motion for Notice to Potential Class Members (“Plaintiffs' Motion, ” Docket Entry # 31). The court has considered the motion and the response from Defendant Shipcom Wireless, Inc. (“Shipcom”), all other relevant filings, and the applicable law. For the reasons set out below, Plaintiffs' request for class certification and notice to potential class members is DENIED.

         I. CASE BACKGROUND

         Justin Novick was employed as a “trainer” by Shipcom from May 2014, until March 2015. (Plaintiffs' Collective Action Complaint, Docket #1, at 13 (“Plaintiffs' Complaint”). His job required him to travel to different medical facilities operated by the U.S. Veterans Health Administration, to train the employees at each facility on how to use the computer software which had been installed by Shipcom. (Id.). During his employment with Defendant, he was classified as an “exempt employee, ” and for that reason, he did not receive overtime pay for any work in excess of 40 hours a week. (Id., Plaintiff's Motion at 2). After leaving his job with Shipcom, Novick learned that the company had since reclassified his position to be a non-exempt one. Novick points out that Shipcom now pays its trainers overtime for any work that exceeds 40 hours a week, and that is evidence that he was improperly denied overtime compensation during his period of employment. (Plaintiffs' Motion at 2). Defendant contends, however, that not all of its trainer positions were reclassified, and that some individuals in that position are still classified as exempt, while others are not. (Defendant's Response in Opposition to Plaintiffs' Motion for Notice to Potential Class Members (“Defendant's Response”) at 4, Docket #32). In its response to the motion, Defendant denies that Novick's specific position was reclassified to be a nonexempt one. (Id.).

         Plaintiff Christopher Kehn worked for Shipcom, as a trainer, from June 2014, until March 2016. (Plaintiffs Motion at 3). His duties were similar to Novick's. (Id.). Kehn was also classified as an exempt employee, and never received overtime pay until Shipcom reclassified the position in late 2015. (Id.). At that time, Kehn was to receive future overtime payments, and he was also paid for any overtime that had been recorded in the timekeeping system prior to the reclassification. (Id.).

         Charles Bethas[3] was likewise a trainer at Shipcom, from August 2014, until June 2016. (Id.). He too was initially classified as an exempt employee, but was reclassified in late 2015, so that he would be paid overtime in the future and would also be paid for any overtime recorded in the timekeeping system prior to the reclassification. (Id.).

         Plaintiff James Abraham was a field support engineer between January 2015, and November 2015. (Id. at 4). This position required him to travel to multiple VA facilities to install and configure the software that the trainers used. (Id.). He was initially classified as an exempt employee, but claims that his position was reclassified to be non-exempt in 2015. He was then eligible for overtime payments. (Id.). Defendant, however, denies that Abraham's position was reclassified, and insists that no field support engineers were ever reclassified. (Defendant's Response at 4).

         Plaintiff Zahid Islam was employed by Shipcom as an “accounts payable clerk/financial analyst” from July 14, 2014, until April 2015. (Id.). Islam performed tasks which included reconciling accounts and vendor statements, processing invoices, communicating with suppliers, and performing data entry. (Id.). During his tenure with Shipcom, he was classified as an exempt employee; however, the company reclassified that position, as non-exempt, after Islam left. (Id. at 5).

         Plaintiff Leslie Woods worked as a travel coordinator between July 2015, and March 2016. (Id.). She made all travel arrangements for Shipcom employees for work related travel. (Id.). The travel coordinator position was classified as an exempt position when Woods began working at Shipcom, but was later changed to a non-exempt position, and she was paid overtime from that time forward. (Id.).

         Justin Novick, Chris Kehn, James Abraham, and Zahid Islam filed this lawsuit on March 18, 2016, alleging that they, and similarly situated employees, had been misclassified as exempt employees and denied overtime pay in violation of the Fair Labor Standards Act. (Plaintiffs' Complaint). These four Plaintiffs, and Bethos, filed a “Consent to Become a Party Plaintiff.” (Docket Entry #1, Exhibits 1-4, Docket Entry #20). On July 27, 2016, Plaintiffs filed a “First Amended Collective Class Action Complaint” (“Amended Complaint”) adding Leslie Woods as a Plaintiff. (Docket Entry #18). Woods filed a “Consent to Become a Party Plaintiff” with the Amended Complaint. (Docket #18, Exhibit 1).

         On January 10, 2017, Plaintiffs filed their Motion for Notice to Potential Class Members. Plaintiffs are asking the court: (1) to authorize an approved notice of this action and a consent form, to be sent to all current and former trainers, accounts payable clerks/financial analysists, field support engineers, and travel coordinators who were employed by Shipcom between between March 18, 2013, and the present; and (2) to order the production of names and addresses of all current and former trainers, accounts payable clerks/financial analysts, field support engineers, and travel coordinators who were employed between March 18, 2013, and the present. (Plaintiffs' Motion at 15). Implicit in this request is a threshold finding by the court that this matter is appropriate for certification, at least conditionally, as a collective action, which would justify a notice to potential class members.

         In support of the motion, each Plaintiff attached a declaration in which he or she claims to have worked more than 40 hours a week for the company, but was paid for only 40 hours of that time. (Plaintiffs' Motion, Exhibits 1-6). Further, the declarations briefly describe each Plaintiff's job duties, the purported representations about compensation that were made to each at the time of hiring, and his or her knowledge that the position was reclassified from an exempt to a non-exempt status. (Id.). Defendant has filed a Response in Opposition to Plaintiffs' Motion for Notice to Potential Class Members. (Docket #32). After considering Plaintiffs' Motion, the pleadings, the evidence submitted, and the applicable law, the court DENIES class certification and DENIES the request for notice to potential class members.

         II. MOTION FOR CONDITIONAL CERTIFICATION

         A. Conditional ...


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