IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Transcription

1 2:16-cv NGE-SDD Doc # 11 Filed 12/30/16 Pg 1 of 25 Pg ID 73 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION BRENDA ANDERSON, individually, and on behalf of others similarly situated, Case No.: 2:16-cv NGE-SDD vs. Plaintiff, THE MINACS GROUP (USA) INC., A Delaware Corporation, Defendant. PLAINTIFF S PRE-DISCOVERY MOTION FOR CONDITIONAL CERTIFICATION AND COURT-AUTHORIZED NOTICE TO POTENTIAL OPT-IN PLAINTIFFS PURSUANT TO 29 U.S.C. 216(b) Plaintiff, Brenda Anderson, on behalf of herself and all other similarly situated individuals, pursuant to Section 16(b) of the Fair Labor Standards Act ( FLSA ), 29 U.S.C. 216(b), hereby moves for entry of an order: (1) Conditionally certifying the proposed FLSA collective; (2) Approving Plaintiff s proposed Notice of Right to Join Lawsuit and Consent to Join Lawsuit forms (Exhibit 1 ( Proposed Notice )) and authorizing Plaintiff s counsel to circulate the Proposed Notice via first-class mail and to the proposed FLSA collective, defined as: All current and former hourly customer service representatives who worked for Defendant in its Farmington Hills, Michigan call center at any time during the last three years; In addition, Plaintiff s counsel requests permission to send each member of the proposed FLSA collective a text message

2 2:16-cv NGE-SDD Doc # 11 Filed 12/30/16 Pg 2 of 25 Pg ID 74 notifying them of their right to opt in to the case. The language proposed to be sent via text message is shown in Exhibit 2. (3) Requiring Defendant to identify all potential opt-in plaintiffs by providing their names, last known addresses, dates of employment, job titles, phone numbers, and addresses in an electronic and importable format within 10 days of the entry of the order; and (4) Allowing putative FLSA collective members sixty (60) days from circulation of the notice to file written consent forms. This Motion is based on the pleadings, memorandum, and arguments of Counsel. The relief Plaintiff seeks is appropriate for the reasons discussed in the attached Memorandum of Law. Plaintiff s counsel sought concurrence from Defendant pursuant to Local Rule 7.1(a) and explained the nature of the motion and the relief requested but concurrence was not obtained. Dated: December 30, 2016 s/ Nicholas Conlon Nicholas Conlon Jason T. Brown JTB LAW GROUP, LLC 155 2nd Street, Suite 4 Jersey City, NJ Phone: (201) nicholasconlon@jtblawgroup.com jtb@jtblawgroup.com Jesse L. Young (P72614) Charles R. Ash, IV (P73877) SOMMERS SCHWARTZ, P.C. One Towne Square, 17th Floor Southfield, Michigan Phone: (248) jyoung@sommerspc.com crash@sommerspc.com Attorneys for Plaintiffs 2

3 2:16-cv NGE-SDD Doc # 11 Filed 12/30/16 Pg 3 of 25 Pg ID 75 CERTIFICATE OF SERVICE I certify that on December 30, 2016, I electronically filed the forgoing document with the Clerk of the Court using the ECF system, which will send notification of such filing to all counsel of record. s/ Nicholas Conlon Nicholas Conlon JTB LAW GROUP, LLC 155 2nd Street, Suite 4 Jersey City, NJ Phone: (201) nicholasconlon@jtblawgroup.com 3

4 2:16-cv NGE-SDD Doc # 11 Filed 12/30/16 Pg 4 of 25 Pg ID 76 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION BRENDA ANDERSON, individually, and on behalf of others similarly situated, Case No.: 2:16-cv NGE-SDD vs. Plaintiff, THE MINACS GROUP (USA) INC., A Delaware Corporation, Defendant. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF S PRE- DISCOVERY MOTION FOR CONDITIONAL CERTIFICATION AND COURT-AUTHORIZED NOTICE TO POTENTIAL OPT-IN PLAINTIFFS PURSUANT TO 29 U.S.C. 216(b)

5 2:16-cv NGE-SDD Doc # 11 Filed 12/30/16 Pg 5 of 25 Pg ID 77 I. INTRODUCTION Plaintiff, Brenda Anderson (hereinafter Plaintiff ), individually and on behalf of all others similarly situated, respectfully requests that the Court: (1) Conditionally certify the proposed FLSA collective; (2) Approve Plaintiff s proposed Notice of Right to Join Lawsuit and Consent to Join Lawsuit forms (Exhibit 1 ( Proposed Notice )) and authorize Plaintiff s counsel to circulate the Proposed Notice via firstclass mail and to the proposed FLSA collective, defined as: All current and former hourly customer service representatives who worked for Defendant in its Farmington Hills, Michigan call center at any time during the last three years; In addition, Plaintiff s counsel requests permission to send each member of the proposed FLSA collective a text message notifying them of their right to opt in to the case. (3) Require Defendant to identify all potential opt-in plaintiffs by providing their names, last known addresses, dates of employment, job titles, phone numbers, and addresses in an electronic and importable format within 10 days of the entry of the order; and (4) Allow putative FLSA collective members sixty (60) days from circulation of the notice to file written consent forms. As identified below, the relief Plaintiff seeks by way of this Motion should be granted because: (1) Plaintiff has provided her sworn declaration, as well as the declaration of opt-in plaintiff Alicia Currie setting forth the basis for their allegation that Defendant maintained a common policy of only paying its representatives for the time spent engaging in telephone calls, thereby depriving them of compensation for hours worked in excess of forty (40) in a workweek. (Exhibit 3, December 28, 2016

6 2:16-cv NGE-SDD Doc # 11 Filed 12/30/16 Pg 6 of 25 Pg ID 78 Declaration of Brenda Anderson ( Anderson Decl. ); Exhibit 4, December 28, 2016 Declaration of Alicia Currie ( Currie Decl. )). (2) The Sixth Circuit applies a lenient standard when deciding whether to conditionally certify a FLSA collective action; (3) Plaintiff has identified similarly situated employees who were subjected to similar job duties, similar pay practices, and who worked overtime hours for which they were not paid, and who would likely participate in a lawsuit to recover their unpaid wages; and (4) Unless Plaintiff is permitted to circulate her Proposed Notice, many putative opt-in plaintiffs will never learn about this case and their right to participate. As a result, their viable claims would silently slip away under the FLSA statute of limitations. II. RELEVANT FACTS A. THE PARTIES 1. Defendant Defendant Minacs is a business and technology outsourcing provider for industries including manufacturing, retail, banking, health care and the public sector. (Doc. 1, Complaint at 19). Minacs company headquarters is located in Farmington Hills, Michigan. (See Exhibit 5, Company Overview of The Minacs Group (USA), Inc., Bloomberg (December 27, 2016)). At all relevant times, Minacs Farmington Hills, Michigan office has been the site of a call center where telephone-dedicated hourly customer service representatives ( Representatives ) handle telephone calls from customers of the various manufacturing, retail, banking, and health care companies that utilize 2

7 2:16-cv NGE-SDD Doc # 11 Filed 12/30/16 Pg 7 of 25 Pg ID 79 Defendant s services. (Doc. 1, at 2). Representatives work at cubicles in office concourses on the first two floors of the building, with the third floor being used by Minacs for management and training. Plaintiffs estimate that at all relevant times, there were approximately other hourly paid Representatives employed by Minacs at its Farmington Hills, Michigan call center. (Anderson Decl., 2, 6; Currie Decl., 2, 6). 2. Plaintiffs Named Plaintiff, Brenda Anderson, is a resident of Wayne County, Michigan, who worked as a Representative in Defendant s Farmington Hills, Michigan call center from September 2011 through October Her most recent hourly rate was $11.25 per hour. (Doc. 1, at 27, 31). Ms. Anderson s declaration is attached hereto as Exhibit 3. Opt-in Plaintiffs Alicia Currie, Terra Page, and Marcus Van worked as Representatives in Defendant s Farmington Hills, Michigan call center in the past three years and have filed their written consent forms. (Doc. 1-1, 2, 6). Ms. Currie, who has submitted a sworn declaration in support of this Motion, worked as a Representative in Defendant s Farmington Hills, Michigan call center from June 2012 through November Her most recent hourly rate was $10.50 per hour. (Exhibit 4, Currie Decl., 2, 3). The putative Collective members are all current and former Representatives 3

8 2:16-cv NGE-SDD Doc # 11 Filed 12/30/16 Pg 8 of 25 Pg ID 80 who worked at Defendant s Farmington Hills, Michigan call center in the last three years. All Representatives received an hourly rate of pay and had the primary duty of answering telephone calls regarding billing and other account activity from customers of Minacs s clients, and in the course of handling these calls, performed work on computers supplied by Minacs, including reviewing customer accounts, preparing forms for customers, transcribing notes from calls for other Representatives, and reading and sending work s. (Anderson Decl., 6, 7; Currie Decl., 6, 7; Exhibit 6, October 14, 2016 job description for Customer Service Representative position at Farmington Hills, Michigan call center). B. DEFENDANT FAILED TO PAY FOR WORK ACTIVITIES WHICH DIRECTLY BENEFITED DEFENDANT AND WHICH WERE AN ESSENTIAL PART OF REPRESENTATIVES JOB RESPONSIBILITIES Defendant s Representatives use multiple computer networks, software programs, and applications in the course of performing their job responsibilities. These programs and applications are an integral and important part of their work as they cannot perform their job without them. All of Defendant s Representatives perform the same basic job duties and are required to use the same or similar computer networks, software programs, and applications. (Anderson Decl., 5-10; Currie Decl., 5-10). Unfortunately, Defendant refuses to compensate their Representatives for work performed while not engaged in telephone calls with customers, including 4

9 2:16-cv NGE-SDD Doc # 11 Filed 12/30/16 Pg 9 of 25 Pg ID 81 time spent logging into their computers, opening computer applications and waiting for them to load, reviewing customer accounts, preparing forms for customers, transcribing notes from calls for other Representatives, reading and sending work s, troubleshooting connectivity issues with Minacs computer and telephone systems, and taking short, less-than-twenty-minutes rest breaks. The result of Defendant s compensation policies: Representatives were not paid for all time worked and for all of their work, including overtime, in violation of the FLSA. (Anderson Decl., 9, 17; Currie Decl., 9, 17). The U.S. Department of Labor recognizes that call center jobs, like those held by Defendant s Representatives, are homogenous and issued Fact Sheet #64 in July 2008 to alert call center employees to some of the abuses which are prevalent in the industry. (Exhibit 7, Fact Sheet #64 at p. 2). One of those abuses, which occurred in this case, is an employer s refusal to pay for work from the beginning of the first principal activity of the workday to the end of the last principal activity of the workday, which for agents/specialists/representatives working in call centers includes starting the computer to download work instructions, computer applications and work-related s. (Id.). 1. Pre-Shift Activities In order to perform their jobs as Representatives, Plaintiffs allege that they were required to arrive fifteen (15) minutes before their shifts were scheduled to 5

10 2:16-cv NGE-SDD Doc # 11 Filed 12/30/16 Pg 10 of 25 Pg ID 82 start, and perform the following activities: Entering a security code to enter their assigned office concourse; Walking to their work cubicles; Turning on their work computers; Logging into the Windows operating system. Loading applications (including one called Citrix ) which enabled Representatives to review customer accounts, prepare forms for customers, and transcribe notes from calls for other Representatives; Reviewing s, instructions, and other notifications; Accessing Minacs telephone system IEX, which enabled Representatives to start receiving inbound calls. Due to delays in Minacs computer systems, it took anywhere from 3-10 minutes on most days for the required computer applications to open and load. Plaintiffs allege that Minacs failed to pay them for this time. (Anderson Decl., 10; Currie Decl., 10). Although Minacs maintained a formal policy applicable to all Representatives of allowing Representatives to submit requests to be paid for time spent waiting for computer applications to load, Plaintiffs allege that in practice, Minacs did not typically provide pay in response to such requests. When Representatives followed Minacs protocol for requesting to be paid for pre-shift time, their requests were ignored. (Anderson Decl., 15; Currie Decl., 15). 2. Mid-Shift Activities During their shifts, Plaintiffs and other Representatives performed various compensable activities while not engaged in calls with customers, including: Reviewing customer accounts; 6

11 2:16-cv NGE-SDD Doc # 11 Filed 12/30/16 Pg 11 of 25 Pg ID 83 Preparing forms for customers; Transcribing notes from calls for other Representatives; Reading and sending work s; Troubleshooting connectivity issues with Minacs computer and telephone systems; and Taking short, less-than-twenty-minutes rest breaks. (Anderson Decl., 17; Currie Decl., 17). These activities directly benefited Minacs and were essential parts of Plaintiffs job responsibilities as Representatives. However, Plaintiffs allege that Minacs denied them pay for these activities by requiring Team Leads to manually reduce Representatives clocked hours to reflect only the time they were engaged in telephone calls. As a result, Plaintiffs Anderson and Currie received paychecks from Minacs for significantly fewer hours than they had worked. (Anderson Decl., 17-19; Currie Decl., 17-19). 2. Defendant failed to pay Representatives overtime compensation Plaintiff and other Representatives regularly worked 40 hours or more per week. (Doc. 1 at 30). Plaintiffs Anderson and Currie worked from approximately 8:00-9:00 a.m. and until 5:00-6:00 p.m., Monday through Friday as well as many Saturdays. Plaintiffs allege that many other Representatives with whom they worked had the same Monday-Friday schedule as them and also frequently worked on Saturdays. (Anderson Decl., 4, 8; Currie Decl., 4, 8). An example of a specific workweek where Defendant failed to pay Plaintiff 7

12 2:16-cv NGE-SDD Doc # 11 Filed 12/30/16 Pg 12 of 25 Pg ID 84 Anderson for hours worked in excess of 40 hours (as mandated by the FLSA) includes the following: a. Workweek of Sunday, August 30, 2015 through Saturday, September 5, 2015: (Doc. 1 at 53). Plaintiff worked 6 shifts Monday through Saturday, lasting approximately 7-10 hours each, and in total worked approximately 50 hours; and Plaintiff was paid for less than forty (40) hours of work, and did not receive any overtime compensation. C. DEFENDANT S VIOLATIONS ARE WIDESPREAD AND ONGOING The violations illustrated above are not limited to the four (4) Plaintiffs who joined this case to date but, rather, stem from Minacs common policy and practice of only paying its Representatives for time spent engaged in telephone calls. Regarding unpaid pre-shift time, Plaintiffs observed Minacs s managers, including former office manager Margarita Vasquez, directing Representatives to arrive fifteen (15) minutes before the start of their scheduled shifts to log into their computers and open applications. Plaintiffs observed other Representatives arriving at the office concourse and walking to their work cubicles at similar times as them each day, as well as using the same computers, logging into the same system (Windows), opening computer applications including Citrix, and experiencing delays with Minacs computer network. Plaintiffs learned through 8

13 2:16-cv NGE-SDD Doc # 11 Filed 12/30/16 Pg 13 of 25 Pg ID 85 conversations that other Representatives were also not paid for pre-shift time, and that requests they made to be paid for pre-shift time were ignored. (Anderson Decl., 10-16; Currie Decl., 10-16). Likewise, Minacs policy of reducing clocked hours to only reflect on-thephone time was also common to all Representatives. Team Leads determined which time to remove from Representatives clocked hours based on measurements of their call times performed by IEX, the telephone application used by all Representatives at the Farmington Hills, Michigan call center. Other Representatives, including Frances Godette and Rebecca Schaffer, told Plaintiffs in conversations that they had worked overtime hours for which they were not paid, and that they suspected this was due to their hours being deducted by management. (Anderson Decl., 19, 22; Currie Decl., 19, 22). Plaintiff Anderson alleges that Team Lead Tiara Milton acknowledged reducing Plaintiff s clocked hours to reflect only the time she spent engaged in telephone calls with customers. (Anderson Decl., 18). Ms. Milton explained that she was required to alter time in this manner due to Minacs corporate policy and practice, which was communicated to her by Stanetta Jones, a Minacs manager who was in charge of hundreds of Representatives including Plaintiffs. (Id.). According to Plaintiff Currie, Ms. Jones told her in a conversation in September 2015 that in order to control the labor budget and motivate 9

14 2:16-cv NGE-SDD Doc # 11 Filed 12/30/16 Pg 14 of 25 Pg ID 86 Representatives to complete more calls, Minacs maintained a policy of only paying Representatives for time spent engaged in telephone calls with customers, and that the policy had been put in place by Lisa Mariano, the Site Director of Minacs Farmington Hills, Michigan call center. (Currie Decl., 21). In late September 2015, Plaintiffs Anderson and Currie submitted a grievance about this policy to Minacs human resources office. In response, Minacs human resources office told them that they would not provide any additional pay on account of the time that was improperly reduced from their clocked hours. (Anderson Decl., 20; Currie Decl., 22). Instead, Minacs terminated Plaintiff Anderson s employment, (Anderson Decl., 21), giving rise to the retaliation claim in Count III of her Complaint. (Doc. 1, ). Despite receiving complaints from Plaintiffs and other Representatives, Defendant has refused to repeal its unlawful policy and practice of only paying Representatives for the time spent engaged in telephone calls. (Id. at 56). There can be no question that Plaintiff has presented strong evidence of Defendant s unlawful compensation schemes and that she meets the lenient burden for notice under 216(b) of the FLSA. Thus, it is appropriate for the Court to authorize distribution of the Proposed Notice attached at Exhibit 1. Issuing notice will promote an efficient prosecution of opt-in plaintiff cases for the Court and the parties. Issuing notice in this case will also fulfill the purpose and intent of 10

15 2:16-cv NGE-SDD Doc # 11 Filed 12/30/16 Pg 15 of 25 Pg ID (b) by allowing other Representatives employed by Defendant to learn of their rights, to become aware of this case and, if they choose, to exercise their right to file a consent to join this lawsuit before the statute of limitations expires. III. LAW AND ARGUMENT A. THE FLSA AUTHORIZES COLLECTIVE ACTIONS AND NOTICE TO SIMILARLY SITUATED EMPLOYEES The FLSA provides that no employer shall employ any of his employees for a work week longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed. 29 U.S.C. 207(a). Congress passed the FLSA with broad remedial intent, to address unfair method[s] of competition in commerce that cause conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers. Monroe v. FTS USA, LLC, 815 F.3d 1000, 1008 (6th Cir. 2016) (quoting Keller v. Miri Microsystems LLC, 781 F.3d 799, 806 (6th Cir. 2015); 29 U.S.C. 202(a)). The provisions of the statute are remedial and humanitarian in purpose, and must not be interpreted or applied in a narrow, grudging manner. Ibid. (quoting Herman v. Fabri-Centers of America, Inc., 308 F.3d 580, 585 (6th Cir. 2002)). To effectuate Congress s remedial purpose, the FLSA authorizes collective actions by any -one or more employees for and on behalf of himself or themselves 11

16 2:16-cv NGE-SDD Doc # 11 Filed 12/30/16 Pg 16 of 25 Pg ID 88 and other employees similarly situated. Ibid. (quoting 29 U.S.C. 216(b)). An employee does not become part of a collective action until he or she opts in by filing a written consent form with the court. Actions pursued in such a representative capacity are referred to as collective actions. Id. This pre-discovery motion only requests the circulation of a notice of the pendency of this action to similarly situated employees pursuant to 216(b) so they can receive notice of, and exercise, their opt in rights in this FLSA litigation. In Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 110 S. Ct. 482, 107 L. Ed. 2d 480 (1989), the United States Supreme Court held that courts have the discretion to implement the collective action procedure by facilitating the issuance of notice to potential collective members. 1 The Court noted: Id. at 170. A collective action allows... plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources. The judicial system benefits by efficient resolution in one proceeding of common issues of law and fact arising from the same alleged... activity. These benefits, however, depend on employees receiving accurate and timely notice concerning the pendency of the collective action, so that they can make informed decisions about whether to participate. 1 Although Hoffmann-La Roche is an Age Discrimination in Employment Act (ADEA) case, its analysis is applicable to FLSA cases because the ADEA explicitly incorporates the FLSA collective action provisions. Mooney v. Aramco Servs. Co, 54 F.3d 1207, 1212 (5th Cir. 1995). 12

17 2:16-cv NGE-SDD Doc # 11 Filed 12/30/16 Pg 17 of 25 Pg ID 89 The FLSA statute of limitations is only two years, and extended to three for a willful violation. 29 U.S.C. 255(a). If notice is not issued early in a case, a great number of employees will lose their claims due to nothing more than the passage of time. District courts often recognize the great prejudice that befalls employees when notice of a collective action is not issued in a timely fashion. See Waggoner v. U.S. Bancorp, 110 F. Supp. 3d 759, 772 (N.D. Ohio 2015) (finding that conditionally certifying the collective nationwide w[ould] promote judicial economy and provide early notice to those potential opt-in class members, whose rights are time-sensitive ); LaFleur v. Dollar Tree Stores, Inc., No. 2:12-cv-00363, 2012 U.S. Dist. LEXIS , *10-11 (E.D. Va. Oct. 2, 2012) ( Because the statute of limitations continues to run on unnamed class members claims until they opt into the collective action... courts have concluded that the objectives to be served through a collective action justify the conditional certification of a class of putative plaintiffs early in a proceeding ). When there is a delay in determining whether to conditionally certify a collective, numerous FLSA violations may persist without redress due to nothing more than the running statute of limitations. Conversely, employees who lack meritorious claims or who are not ultimately found to be similarly situated to the named plaintiffs in a given case receive no structural advantage from early courtauthorized notice. These employees must still prove their case on the merits, and 13

18 2:16-cv NGE-SDD Doc # 11 Filed 12/30/16 Pg 18 of 25 Pg ID 90 they still must withstand a stage-two decertification analysis in order to proceed as a collective action. In sum, the only plausible purpose for delaying early notice is to foreclose the vindication of valid claims under the FLSA. B. THE SIXTH CIRCUIT HAS CONSISTENTLY APPROVED USE OF THE FAIRLY LENIENT STANDARD WHEN CONDITIONALLY CERTIFYING A FLSA COLLECTIVE ACTION In light of the FLSA s remedial purpose, the Sixth Circuit has adopted the fairly lenient two-step approach to authorizing collective action certification, which typically results in conditional certification of the representative class. Gaffers v. Kelly Services, Inc., 2016 U.S. Dist. LEXIS , *32-33 (E.D. Mich. Aug. 24, 2016) (citing Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, (6th Cir. 2006) (to proceed on a collective action basis, all plaintiffs must: (1) be similarly situated and (2) consent in writing to participate in the lawsuit)). 1. Stage One The first stage, known as the notice stage, occurs at the beginning of discovery. Hathaway v. Shawn Jones Masonry, 2012 U.S. Dist. LEXIS 52313, *5 (W.D. Ky. Apr. 12, 2012). At this stage, courts generally determine whether notice of the pending action and the opportunity to opt-in should be given to potential class members. Crawford v. Lexington-Fayette Urban Co. Gov t, 2007 U.S. Dist. LEXIS 6711 at *14 (E.D. Ky. 2007). The instant 216(b) motion was filed before discovery commenced and, thus, arises at the notice stage. 14

19 2:16-cv NGE-SDD Doc # 11 Filed 12/30/16 Pg 19 of 25 Pg ID 91 (a) Burden of Proof Plaintiff s evidentiary burden at this stage is not a heavy one. Comer, 454 F.3d at 547; see also Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, (11th Cir. 2008) (quoting cases in which the notice-stage standard was described as not particularly stringent, fairly lenient, not heavy, and less stringent than that for joinder under Rule 20(a) or for separate trials under 42(b) ) (internal citations omitted). The plaintiffs must present nothing more than a modest factual showing, a standard that typically results in conditional certification. Comer, 454 F.3d (quoting Pritchard v. Dent Wizard Int'l Corp., 210 F.R.D. 591, 594 (S.D. Ohio 2002); Morisky v. Public Serv. Elec. & Gas Co., 111 F. Supp. 2d 493, 497 (D. N.J. 2000)). (b) Evidence Typically Accepted to Meet the Modest Factual Showing Standard To secure preliminary certification of their collective action, plaintiffs may rely on pleadings and supplementary materials such as affidavits and other supporting documents. See Hathaway, 2012 U.S. Dist. LEXIS 52313, *5 ( At this stage, courts generally consider the pleadings and any affidavits which have been submitted ). [T]here is no threshold requirement for a certain number of affidavits from employees to certify conditionally a collective action. Myers v. Marietta Mem. Hosp., No. 2:15-CV-2956, 2016 U.S. Dist. LEXIS , at *16 (S.D. Ohio Aug. 17, 2016). In addition to the pleadings and declaration(s), job 15

20 2:16-cv NGE-SDD Doc # 11 Filed 12/30/16 Pg 20 of 25 Pg ID 92 descriptions containing similar job duties, along with other evidence that demonstrates that the plaintiffs and opt-in plaintiffs are similarly situated with respect to job duties, can establish a company-wide FLSA violation. Waggoner, 110 F. Supp. 3d at 772 (collecting cases). (c) At Stage One, Courts Do Not Evaluate the Merits of Claims or Consider Individualized Defenses Consistent with the purpose of 216(b), in making the determination of whether a group of similarly situated individuals exists, the Court need not and should not evaluate the merits of the Plaintiff s claims. See Shipes v. Amurcon Corp., No , 2012 U.S. Dist. LEXIS 39794, *12 (E.D. Mich. Mar. 23, 2012) ( At this first stage, courts do not resolve factual disputes, decide substantive issues on the merits, or make credibility determinations. ). Similarly, allegations that the parties claims or defenses are too individualized are better raised in a motion to decertify a collective after discovery has concluded. See Gaffers, 2016 U.S. Dist. LEXIS at *37-39; Shabazz v. Asurion Ins. Serv., Case No. 3:07-cv-0653, 2008 WL (M.D. Tenn., April 10, 2008) (employer s assertions regarding different types of classifications given to employees who handle calls from customers are arguments more appropriately raised at the decertification stage of a collective action). Nevertheless, Defendant is expected to argue (as employers always do) that the Court cannot conditionally certify the Collective proposed in the instant case 16

21 2:16-cv NGE-SDD Doc # 11 Filed 12/30/16 Pg 21 of 25 Pg ID 93 because the Court must make individualized determinations and decide whether each potential Collective member is identical. Such an argument is entirely improper at the notice stage. Further, Defendant will likely attempt to support its arguments by citing cases that were decided in a different context or at a much different stage in the litigation than the instant case, typically after substantial discovery had occurred. See e.g., Bunyan v. Spectrum Brands, Inc., Case No. 07- cv-0089, 2008 WL , at *3 (S.D. Ill., July 31, 2008) ( over fifteen months of discovery has taken place ). The Court should disregard Defendant s expected arguments that individualized issues preclude conditional certification, which is inconsistent with and irrelevant to the lenient standard applied in 216(b) conditional certification motions. C. THE ISSUANCE OF COURT-SUPERVISED NOTICE TO POTENTIAL OPT-IN PLAINIFFS PURSUANT TO 216(b) IS APPROPRIATE IN THIS CASE In the instant case, Plaintiff and the putative Collective members all worked for Defendant and were not compensated properly under the FLSA. They were all subjected to similar policies and procedures regarding their pay structure which manifested in Defendant s failing to properly compensate them for all time worked, including overtime pay. Further, Plaintiff s declaration and other evidence confirms that she is similarly situated to the putative Collective. See Exhibits

22 2:16-cv NGE-SDD Doc # 11 Filed 12/30/16 Pg 22 of 25 Pg ID 94 Faced with similar evidence, district courts around the nation routinely grant conditional certification in call center cases. See e.g. Hargrove v. Ryla Teleservices, Inc., 2012 U.S. Dist. LEXIS (E.D. Va. 2012); Swarthout v. Ryla Teleservices, Inc., 2011 U.S. Dist. LEXIS (N.D. Ind. 2011); Robinson v. Ryla Teleservices, Inc., 2011 U.S. Dist. LEXIS (S.D. Ala. 2011); Russell v. Ill. Bell Tel. Co., 575 F.Supp.2d 930 (N.D. Ill. 2008); Fisher v. Mich. Bell Tel. Co., 665 F.Supp.2d 819 (E.D. Mich. 2009); Bishop v. AT&T Corp., 256 F.R.D. 503 (W.D. Pa ); Burch v. Qwest Communs. Int'l, Inc., 500 F.Supp.2d 1181 (D. Minn. 2007); Sherrill v. Sutherland Global Servs., 487 F.Supp.2d 344 (W.D. N.Y. 2007); Clarke v. Convergys Customer Mgmt. Group, Inc., 370 F.Supp.2d 601 (S.D. Tex. 2005); Hens v. ClientLogic Operating Corp., 2006 U.S. Dist. LEXIS (W.D. N.Y. 2006); Beasely v. GC Servs. LP, 270 F.R.D. 442 (E.D. Mo. 2010). Thus, the Court should grant conditional certification and approve distribution of the Notice attached as Exhibit 1. Issuing notice will promote efficient prosecution of the potential opt-in Plaintiffs cases for the Court and parties and will fulfill the purpose of 216(b) by affording the other workers employed by Defendant the opportunity to learn of their rights, become aware of this case and, if they chose, to exercise their right to join this lawsuit. 18

23 2:16-cv NGE-SDD Doc # 11 Filed 12/30/16 Pg 23 of 25 Pg ID 95 D. PLAINTIFF IS ENTITLED TO OBTAIN A LIST OF ALL POTENTIAL COLLECTIVE MEMBERS Plaintiff requests this Court to order Minacs to identify all potential opt-in plaintiffs within 10 days of the entry of the Order conditionally certifying the Collective. Specifically, Plaintiff requests: A list in electronic and importable format, of all current and former hourly customer service representatives who worked for Defendant in its Farmington Hills, Michigan call center at any time during the last three years, including their: names, last known addresses, dates of employment, job titles, phone numbers, and addresses. Discovery of this information is necessary to facilitate effective notice to those employees who need to receive notice in order to exercise their right to opt in. E. NOTICE SHOULD BE CIRCULATED VIA MAIL, , AND TEXT MESSAGE Citing the realities of modern-day society and the available efficiencies, numerous courts recognize that it is appropriate to distribute notice by way of e- mail in addition to first-class mail. See e.g. Atkinson v. TeleTech Holdings, Inc., 2015 U.S. Dist. LEXIS 23630, *11 (S.D. Ohio, February 26, 2015) (approving e- mail notice to call center employees and observing that it appears to be in line with the current nationwide trend ); Likewise, courts have also approved distribution of collective action notices via text message, as Plaintiff requests here. See e.g. Bhumithanarn v. 22 Noodle Mkt. Corp., No. 14-cv-3624 (RJS), 2015 U.S. Dist. LEXIS 90616, at *11-13 (S.D.N.Y. July 13, 2015) (collecting cases). 19

24 2:16-cv NGE-SDD Doc # 11 Filed 12/30/16 Pg 24 of 25 Pg ID 96 IV. CONCLUSION Minacs FLSA violations have been flagrant and pervasive. Apparently not content with the labor costs saved by depriving Representatives of pay for 3-10 minutes of preliminary work performed each day, Minacs has gone a step further by purposefully altering the time records of Plaintiffs and other Representatives to deny them pay for time worked during their shifts, and terminating Representatives once they discover this practice is occurring. The only way to stop this cycle of abuse is through the circulation of a timely, accurate, court-approved notice. For the reasons explained above, Plaintiff respectfully requests that the Court enter an order as requested in the attached Motion. Dated: December 30, 2016 s/ Nicholas Conlon Nicholas Conlon Jason T. Brown JTB LAW GROUP, LLC 155 2nd Street, Suite 4 Jersey City, NJ Phone: (201) nicholasconlon@jtblawgroup.com jtb@jtblawgroup.com Jesse L. Young (P72614) Charles R. Ash, IV (P73877) SOMMERS SCHWARTZ, P.C. One Towne Square, 17th Floor Southfield, Michigan jyoung@sommerspc.com crash@sommerspc.com Attorneys for Plaintiffs 20

25 2:16-cv NGE-SDD Doc # 11 Filed 12/30/16 Pg 25 of 25 Pg ID 97 CERTIFICATE OF SERVICE I certify that on December 30, 2016, I electronically filed the forgoing document with the Clerk of the Court using the ECF system, which will send notification of such filing to all counsel of record. s/ Nicholas Conlon Nicholas Conlon JTB LAW GROUP, LLC 155 2nd Street, Suite 4 Jersey City, NJ Phone: (201) nicholasconlon@jtblawgroup.com 21