United States District Court, S.D. Texas, Houston Division
JUSTIN NOVICK, CHRIS KEHN, JAMES ABRAHAM, AND ZAHID ISLAM, on behalf of themselves and Others similarly situated, Plaintiffs,
SHIPCOM WIRELESS, INC., Defendant.
MEMORANDUM AND ORDER ON PLAINTIFFS' REQUEST FOR
CLASS CERTIFICATION AND MOTION FOR NOTICE TO POTENTIAL CLASS
MILLOY UNITED STATES MAGISTRATE JUDGE.
before the court is Plaintiffs' request for an order
allowing this action to proceed as a representative
collective action under the Fair Labor Standards Act
(“FLSA”), 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.
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.).
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
Bethas 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
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).
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).
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.).
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).
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
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
MOTION FOR CONDITIONAL CERTIFICATION