United States District Court, S.D. Texas, Houston Division
Jeremy Ryan Card, on behalf of himself and on Behalf of All Others similarly Situated, Plaintiff,
Quality Cable Partners, LLC, Defendant.
OPINION ON MOTION FOR CONDITIONAL CLASS
Stephen Wm Smith United States Magistrate Judge
Fair Labor Standards Act (FLSA) case is before the court on
plaintiff's opposed motion for conditional certification
and notice to potential class members (Dkt.
The proposed class would include foremen and helpers who have
worked for defendant QCI providing cable installation
services. To date no other individual has joined the case as
a plaintiff. The motion is granted in part and denied in
16(b) of the FLSA permits an employee to bring suit against
an employer “for and in behalf of himself … and
other employees similarly situated.” 29 U.S.C. §
216(b). Section 16(b) also provides that “No employee
shall be a party plaintiff 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.” Id. Unlike a standard class action
under Federal Rule of Civil Procedure 23(c), section 216(b)
provides an “opt-in” rather than
“opt-out” procedure. See Villatoro v. Kim Son
Rest., L.P., 286 F.Supp.2d 807, 809 (S.D. Tex. 2003)
(relying on 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 (2003)).
have discretion to allow a party asserting FLSA claims on
behalf of others to notify potential plaintiffs that they may
choose to opt-in to the suit. See Hoffman-La Roche, Inc.
v. Sperling, 493 U.S. 165, 168-70 (1989); Jackson v.
City of San Antonio, 220 F.R.D. 55, 62 (W.D. Tex. 2003).
This collective action notice should be “timely,
accurate, and informative.” Hoffman-La Roche,
493 U.S. at 172. The standard for this “collective
action” notice is more lenient than that for a class
action. See Mooney, 54 F.3d at 1214.
in the Southern District of Texas use a
“two-stage” method for certification of an FLSA
collective action. See, e.g., Villatoro v. Kim
Son Rest., L.P., 286 F.Supp.2d 807 (S.D. Tex. 2003). The
two stages are the “notice stage, ” and if
necessary, the “decertification stage.” At the
notice stage, the court determines whether the proposed class
members are similarly situated. Mooney, 54 F.3d at
1213. This determination is made using a fairly lenient
standard, requiring only “substantial allegations that
the putative class members were together the victims of a
single decision, policy, or plan.” Id. at 1214
n.8 (citation omitted). Although the standard is lenient, it
is not automatic. Badgett v. Texas Taco Cabana, LP,
2006 WL 2934265 at *2 (S.D.Tex. Oct. 12, 2006).
decertification stage is typically initiated on
defendant's motion after discovery is largely complete.
Mooney, 54 F.3d at 1214. If the additional claimants
are similarly situated, the court allows the representative
action to proceed; if not, the court decertifies the class,
and the opt-in plaintiffs are dismissed without prejudice.
Villatoro, 286 F.Supp.2d at 809.
employees are “similarly situated” for purposes
of the FLSA is determined in reference to their “job
requirements and with regard to their pay provisions.”
Dybach v. Florida Dep't of Corr., 942 F.2d 1562,
1567-68 (11th Cir. 1991). A plaintiff need only demonstrate a
reasonable basis to believe that a class of similarly
situated persons may exist. Grayson v. K Mart Corp.,
79 F.3d 1086, 1097 (11th Cir. 1996). However, at least some
evidence beyond unsupported factual assertions of a single
decision, policy, or plan should be presented. Texas Taco
Cabana, LP, 2006 WL 2934265 at *2.
was employed by QCI as a foreman from January 19, 2015 to
July 22, 2016. QCI is a small business in Houston that
provides network cabling products and cable installation
services to end-users in various industries. Prior to January
2015, QCI did not directly employ any installers. Instead,
QCI outsourced the installation services to several
businesses, including Needham Communications. This changed in
January 2015, when QCI directly hired several Needham
workers, including the plaintiff, who was then a foreman.
Dkt. 15, Ex. A.
foreman, plaintiff was primarily paid a commission for each
project, calculated on a piece rate basis for the service
performed, such as $20.00 per cable installed, $5.00 per
cable terminated. Unlike foremen, the helpers who worked on
the projects under a foreman' direction were paid by the
has requested conditional certification of a proposed class
of similarly situated foremen and helpers who worked for QCI
during the relevant time period. The evidence accompanying
plaintiff's motion leaves little doubt that other QCI
foremen were similarly situated to the plaintiff, given that
they performed the same duties and were paid on the same
piece-rate commission basis (at least after January 2015).
Dkt. 13-1. In addition, a foreman's pay was subject to
certain deductions, including the hourly pay of the helpers
on the job. Id. Thus, while the foremen might work
at different job sites, they were all subject to a single pay
helpers are a different story, however. Their job duties were
obviously not the same as the foremen who oversaw their work.
Nor were they paid on the same basis as the foremen. Instead
of a piece rate commission, helpers were paid by the hour. In
other words, the helpers were paid based upon the actual time
spent on the job, while the foremen were paid under a
completely different system. Moreover, the material factual
differences between the two job classes might also give rise
to different legal defenses at trial. See Dkt. 15,
at 7-8. Based on this record the only thing the foremen and
helpers have in common is the complaint that QCI failed to
pay them overtime. This is insufficient to establish that
they were all the victims of “a single decision, policy
or plan.” Otherwise, the “similarly
situated” limitation on FLSA collective actions would
be rendered meaningless.
fact that plaintiff previously worked as a helper for Needham
Communications for two months in 2014 does not alter the
analysis. Plaintiff's declaration makes clear
that he was a foreman, not a helper, when he transferred over
as an employee of QCI in January 2015. Dkt. 13-1, at ¶
2. Nor does it appear that QCI itself employed any helpers
prior to that time. For these reasons the Court concludes
that QCI helpers ...