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Vega v. Point Security, LLC

United States District Court, W.D. Texas, Austin Division

September 13, 2017

JUAN VEGA, on behalf of himself and all others similarly situated
v.
POINT SECURITY, LLC DBA POINT SECURED, LLC,

          THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          ANDREW W. AUSTIN UNITED STATES MAGISTRATE JUDGE

         Before the Court are Plaintiff's Motion for Conditional Certification of a Collective Action and Authorization for Notice (Dkt. No. 15); Defendant's Response (Dkt. No. 19); and Plaintiff's Reply (Dkt. No. 21). The District Court referred the motion to the undersigned for a report and recommendation pursuant to 28 U.S.C. §636(b) and Rule 1(c) of Appendix C of the Local Rules.

         I. GENERAL BACKGROUND

         This is a collective action brought pursuant to the Fair Labor Standards Act. The Plaintiff, Juan Vega was employed as an installation technician for Point Security from 2014 until July of 2015. Dkt. No. 1. Point Security provides security monitoring and security equipment to business and residential customers. Its corporate office is in Hutto, Texas and it has additional offices in San Antonio, Houston, Dallas/Fort Worth, and Waco/Killeen. Point Security sells security equipment, such as alarm systems, motion detectors, and cameras, and it employs installation technicians to install this equipment. An installation technician's regular job duties consist of installing security equipment, such as sensors, keypads, and cameras at the homes and businesses of Point Security customers. Installation technicians are paid at a “piece rate” of a defined amount for each type of installation performed, or set rate for each service call, or at a flat weekly rate-whichever was higher. Dkt. No. 1 at ¶ 41; Dkt. No. 15 at 1. Installation technicians are provided a company truck to complete their work, but are required to pay for maintenance and gas for the trucks themselves, which Vega alleges costs hundreds of dollars per month. Dkt. No. 1 at ¶ 44. Vega alleges that he and other installation technicians regularly work in excess of 60 hours per week. Dkt. No. 1 at ¶ 42.

         Vega alleges Point Security failed to pay installation technicians overtime, in violation of 29 U.S.C. § 207, and failed to pay them the minimum wage, in violation of 29 U.S.C. § 206(a). Vega further alleges that the expenses Vega and other installation technicians incurred to operate Point Security trucks, in the weeks when those payments reduced the effective hourly rate below the minimum wage, constitute an illegal kickback in violation of 29 C.F.R. § 531.35. Vega asserts that Point Security failed to pay overtime for at least 20 other similarly situated installation technicians over the last three years. Dkt. No. 15 at 8. In his motion now before the Court, Vega moves to conditionally certify a collective action of all current and former Point Security installation technicians who worked for Point Security at any location throughout the United States from three years prior to the date of certification. He also requests Court authorization to identify and notify potential class members. Defendants respond that Vega has failed to submit adequate evidence of a similarly situated class sufficient to warrant certification.

         II. ANALYSIS

         A. Conditional Certification Standard

         Section 216(b) of the FLSA allows a suit to be filed by an employee against his employer for unpaid minimum wages or unpaid overtime compensation, either individually or as a collective action on behalf of himself and “other employees similarly situated.”

An action . . . may be maintained against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

29 U.S.C. § 216(b). Putative class members must “opt-in, ” i.e., affirmatively notify the court of their intention to become parties to the collective action by written consent. Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1212 (5th Cir. 1995), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 91-92 (2003). While the FLSA allows an employee to bring a claim on behalf of similarly situated employees, those other employees do not become plaintiffs in the suit unless and until they consent in writing. § 216(b).

         Typically such putative collective class actions proceed in two stages. See Lusardi v. Xerox Corp., 118 F.R.D. 351, 381-82 (D.N.J. 1987) (describing two-step procedure-conditional certification and notice, followed by possible decertification-in putative FLSA cases used by most district courts in the Fifth Circuit). Before notice may issue to potential class members, the court must conditionally certify the class as a collective action. Conditional certification “is not tantamount to class certification under Rule 23.” Genesis Healthcare Corp. v. Symcyk, 133 S.Ct. 1523, 1532 (2013). The primary effect of a conditional certification is that a court-approved written notice is sent to similarly situated putative class members, who then may choose to become parties to a collective action by filing a written consent with the court. Id. at 1530, citing 29 U.S.C. § 216(b). Courts have discretion in determining whether to certify a collective action under the FLSA and to authorize notice to similarly situated employees advising them of their right to join such a collective action. Mooney, 54 F.3d at 1213.

         At the notice stage, the district court “determines whether the putative class members' claims are sufficiently similar to merit sending notice of the action to possible members of the class.” Acevedo v. Allsup's Convenience Stores, Inc., 600 F.3d 516, 519 (5th Cir. 2010) (citing Mooney, 54 F.3d at 1213-14). “Because the court has minimal evidence, the court makes this determination using a fairly lenient standard, [which] typically results in ‘conditional certification' of the representative class.” Mooney, 54 F.3d at 1214. This lenient standard requires only “substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Id. at 1214 n.8 (internal citation and citation marks omitted).

         A court will customarily make its decision “based only on the pleadings and any affidavits which have been submitted.” Id. at 1213-14. Generally, to meet its burden a plaintiff must show: (1) there is a reasonable basis for crediting the assertion that aggrieved individuals exist; (2) those aggrieved individuals are similarly situated to the plaintiff in relevant respects given the claims and defenses asserted; and (3) those individuals want to opt in. Vasquez v. Am. Bor-Trench, Inc., 2014 WL 297414, at *3 (S.D. Tex. Jan. 23, 2014) (internal citations and citation marks omitted).[1] In evaluating these elements, courts consider factors such as whether potential plaintiffs were identified, whether affidavits of potential plaintiffs were submitted, and whether evidence of a widespread discriminatory plan was submitted. Velazquez v. FPS LP, 2014 WL 3843639, at *4 (S.D. Tex. Aug. 4, 2014) (internal citations and ...


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