UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-61249-CIV-DIMITROULEAS

JHON SARMIENTO, Individually and

on behalf of all others similarly situated,

Plaintiff,

vs.

SCHEAR CONSTRUCTION, LLC, a

Florida Limited Liability Company,

Defendant.

___________________________________/

ORDER GRANTING PLAINTIFF’S MOTION TO CONDITIONALLY 

CERTIFY COLLECTIVE ACTION AND FACILITATE NOTICE 

TO POTENTIAL CLASS MEMBERS

THIS CAUSE is before the Court upon Plaintiff’s Unopposed Motion to Conditionally 

Certify Collective Action and Facilitate Notice to Potential Class Members [DE 27] (the 

“Motion”). The Court has carefully considered the Motion, the exhibits attached to the Motion, 

including the proposed court authorized notice, that the Motion is unopposed, and is otherwise 

fully advised in the premises.

Section 216(b) of the FLSA provides that an action for unpaid overtime compensation 

may be maintained by “any one or more employees for and in behalf of [themselves] . . . and 

other employees similarly situated.” 29 U.S.C. § 216(b). Courts in the Eleventh Circuit use of a 

two-tiered approach to certification in § 216(b) actions, with the first stage being the “notice 

stage”. Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1218–19 (11th Cir. 2001)). Because 

class actions brought under the FLSA can include only those plaintiffs who affirmatively opt into 

the action by filing their consent in writing with the Court, district courts have discretionary 

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power to authorize the sending of notice to potential class members in appropriate cases. See 

Haynes v. Singer Co., 696 F.2d 884, 886 (11th Cir. 1983). At the notice stage a court may grant 

conditional certification and allow plaintiffs to send notice to similarly situated potential 

plaintiffs, “if a plaintiff demonstrates a reasonable basis to believe that: (1) there are other 

employees of the Defendant who desire to opt-in and (2) that these other employees are similarly 

situated with respect to their job requirements and with regard to their pay provisions.” Bennett 

v. Hayes Robertson Grp., Inc., 880 F. Supp. 2d 1270, 1283-83 (S.D. Fla. 2012) (internal 

quotations omitted). The standard and the notice stage is a lenient one. Id. at 1983. Where 

discovery has not been completed, a motion to conditionally certify a collective action under the 

FLSA and send out court authorized notice is typically granted. Id. 

Accordingly, it is hereby ORDERED AND ADJUDGED that Plaintiff’s Unopposed 

Motion to Conditionally Certify Collective Action and Facilitate Notice to Potential Class 

Members [DE 27] is GRANTED.

1) The Court hereby conditionally certifies an FLSA collective action consisting of all 

hourly paid “laborers”1 employed by Defendant Schear Construction, LLC who were 

paid “straight time” or their regular hourly rate for hours worked over forty (40) in one or 

more workweeks during the applicable three (3) year limitation period as opposed to the 

time and one-half overtime to which they are/were due under the FLSA;

2) Defendants shall provide Plaintiff on or before June 3, 2020 with a list of all putative 

class members’ names, addresses, phone numbers, and e-mail addresses to carry out 

notice;

1 The term “laborer” is used here as it is used in the Motion and refers to all of Defendant’s hourly-paid construction 

workers, regardless of their actual job title, who worked through Defendant’s Puerto Rico division.

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3) The time period for opting into this action will be sixty (60) days from the date Notice is 

sent via U.S. Mail and/or e-mail. In order to be timely, consent forms must be signed2 by 

the putative class member who is opting-in, dated, and filed with the Court by the 60th

day after notice is sent;

4) Plaintiff is permitted to send the Class Notice, [DE 27-1], via e-mail and text message to 

all workers within the defined class,3 in addition to mailing same via first-class mail as 

the Court has found the proposed notice is appropriate; Plaintiff is also permitted to send 

the proposed “Consent to Join” form, [DE 27-2];

5) Within two (2) days of sending notice, Plaintiff’s counsel shall file with the Court and serve 

on Defendant’s counsel a certification as to the date on which notice was mailed and/or 

emailed to the individuals;

6) Within seven (7) days of receiving a signed opt-in consent form, Plaintiff’s counsel shall 

provide a copy of said consent form to Defendant’s counsel. 

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, 

this 21st day of May, 2021.

Copies furnished to:

Counsel of record

2 Putative class members are permitted to electronically execute their consent forms.

3 Notice should go to all individuals who were employed by Defendant during the three-year period preceding the 

Court’s ruling on the instant Motion. Per the Parties’ stipulation the claims of putative opt-in plaintiffs are tolled as 

of April 16, 2021.

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