UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

ROBERT HALL, et al.,

Plaintiffs,

v.

PLASTIPAK HOLDINGS, INC., et al.,

Defendant.

 /

Case No. 15-11428

OPINION AND ORDER GRANTING CONDITIONAL CLASS 

CERTIFICATION AND SCHEDULING STATUS CONFERENCE

Pending before the court is Plaintiffs’ “Motion for Conditional Certification of an

FLSA Collective Action and for an Order for Notice to the Class.” (Dkt. #34.) Defendants

have filed a response to the motion, (Dkt. #41), and Plaintiffs have filed a reply, (Dkt.

#44). After reviewing the briefs, the court concludes that a hearing is unnecessary. See

E.D. Mich. LR 7.1(f)(2). For the following reasons, the court will grant conditional class

certification and approve notice to the class pending a conference on the manner and

schedule for the delivery of such notice.

I. BACKGROUND

Plaintiffs are former employees bringing suit against an individual and several

related entities who allegedly violated Section 207 of the Fair Labor Standards Act

(“FLSA”), 29 U.S.C. 201 et seq., by failing to pay employees a sufficiently high hourly

rate for overtime work. Previously the court dismissed Plaintiffs’ complaint without

prejudice on the basis that it lacked the requisite specificity to state a claim under the

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FLSA as it merely parroted the language of the statute rather than alleging facts as to

the estimated hours worked or wage shortfall. (Dkt. #22.) Plaintiffs filed an amended

complaint which included at least some additional information specific to the claims of

each Plaintiff. (Dkt. #23.) Defendants then filed a motion for sanctions pursuant to

Federal Rule 11 on the basis that Plaintiffs had named improper Defendants who were

not actually their employers, and that their claims lacked merit because they were

properly paid under the FLSA. (Dkt. #30.) The court denied the motion for sanctions,

reasoning that the named Defendants could fall into the FLSA definition of “employer,”

and that it was premature to make a determination that the claims lacked merit as

outstanding questions of fact remained. (Dkt. #33.) Shortly thereafter Plaintiffs filed the

instant motion seeking the conditional certification of a class defined as: 

All current and former persons employed by Defendants and

compensated on an hourly or non-exempt salary basis by Defendants,

who worked for at least one week in excess of 40 hours but were not

properly paid overtime for hours worked over 40 in a week or over 80 in a

two week pay period, during the period from three years prior to the filing

of this complaint to the present.

(Dkt. #23, Pg. ID 376.)

Plaintiffs argue that to obtain conditional certification, they need only make a

“modest showing” that a class of similarly situated Plaintiffs exist. Thereafter, notice

would be sent to the potential class members, who would then be required to

affirmatively opt-in to class membership to participate in the action. Defendants argue

that Plaintiffs have not carried their burden, and their proposed class notice is

inadequate because it is overbroad. In reply, Plaintiffs argue that even Defendants

admit to using the same compensation scheme across all of their hourly and salaried

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non-exempt employees, so they are all similarly situated for the purposes of an FLSA

suit alleging insufficient overtime compensation. Plaintiffs also suggest adding a

“salaried or non-exempt” qualifier to the proposed notice to mitigate overbreadth.

II. STANDARD

Parties alleging violations of Section 207 of the FLSA may, in certain

circumstances, proceed as a collective action on behalf of themselves and other

similarly situated employees. The FLSA allows that: 

An action to recover [for violations of Section 207] 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 plaintiff to such action unless he gives his

consent in writing to become such a party and consent is filed in the court

in which such action is brought.

29 U.S.C. § 216(b). 

“The threshold inquiry for the court in determining whether to conditionally certify

a class under § 216(b) is whether plaintiffs have shown that the employees to be

notified are, in fact, similarly situated.” Brown v. Ak Lawncare, Inc., No. 14-14158, 2015

WL 5954811, at *3 (E.D. Mich. Oct. 14, 2015) (quotation omitted). “Because only

minimal evidence is available to the parties and to the court at this point, the ‘similarly

situated’ question is measured by a lenient standard.” Monroe v. FTS USA, LLC, 257

F.R.D. 634, 637 (W.D. Tenn. 2009). 

Courts “have used a two-phase inquiry to address this question,” such that prior

to the completion of discovery, “[t]he plaintiff must show only that his position is similar,

not identical to the positions held by the putative class members.” Comer v. Wal-Mart

Stores, Inc., 454 F.3d 544, 546-47 (6th Cir. 2006) (quotations omitted). This standard

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requires only a “modest factual showing” which “typically results in a ‘conditional

certification.’” Id. at 547 (citations omitted). To make this showing, “plaintiff’s evidence

on a motion for conditional certification is not required to meet the same evidentiary

standards applicable to motions for summary judgment because to require more at this

stage of the litigation would defeat the purpose of the two-stage analysis under Section

216(b).” Fisher v. Michigan Bell Telephone Co., 665 F. Supp. 2d 819, 826 (E.D. Mich.

2009). “If the Court authorizes a ‘collective action’ under § 216(b), then in its discretion,

this Court may authorize the notification of putative ‘class’ members of the pendency of

the collective action.” Olivo v. GMAC Morg. Corp., 374 F. Supp. 2d 545, 547 (E.D. Mich.

2004). Following the completion of discovery, the court may revisit the “similarly

situated” determination, “usually in response to a motion for decertification.” Monroe,

257 F.R.D. at 637. 

III. DISCUSSION

A. Similarly Situated Employees

Plaintiffs allege that hourly and salaried, non-exempt employees were all treated

alike by Defendants, whose policy it was to pay overtime at approximately the same

hourly rate that employees earned for non-overtime work. In support they have filed

affidavits averring to have been paid according to this scheme and to be acquainted

with other employees who were “compensated on the same basis” as they were. (Dkt.

#34-3.) Also supporting their motion are pay stubs which appear to reflect an hourly

overtime pay rate essentially identical to the salary rate. (Dkt. #34-4.)

Defendants attack Plaintiffs’ affidavits as vague and conclusory, and they attack

Plaintiffs’ underlying legal theory as lacking merit. The court agrees that Plaintiffs’

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affidavits lack specificity, but Defendants admit that “[s]igning the Acknowledgment

Form was a condition of employment with Plastipak Packaging, Inc., as a salaried nonexempt associate since November 2005.” (Dkt. #41, Pg. ID 690). If anything, this is

good evidence that even though the “over 3,200" employees held different roles across

the company, they are likely “similarly situated” as to the policy governing their

compensation. Additionally, Defendants’ arguments as to the merits of Plaintiffs’ claims

were addressed in this court’s order denying their motion for sanctions as premature,

(Dkt. #35, Pg. ID 648-49.), and they remain so today. Plaintiffs have made the “modest

showing” under a “lenient standard” that the other employees were similarly situated,

and thus conditional certification is warranted.

B. Adequacy of Class Notice

Defendants argue that Plaintiff’s proposed notice is inadequate because it

purports to direct notice to all “current and former” employees when the affidavits

supporting Plaintiffs’ motion only related to “salaried non-exempt” employees. Plaintiffs

suggest a concession that the notice be limited to “hourly and salaried non-exempt”

employees, apparently without contesting that salaried exempt employees would not be

similarly situated. The suggested modification comports with the language in the

amended complaint which defines the purported class, and Defendants have given no

reason for why hourly and salaried non-exempt employees should not be seen as

“similarly situated” for the purposes of a Section 207 claim. The court finds that the

proposed class notice is otherwise adequate. Therefore, the court will order Plaintiffs to

modify the language and scope of the notice to purported members to include the

proposed qualifier. 

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 IV. CONCLUSION

IT IS ORDERED that Plaintiffs’ “Motion for Conditional Certification of an FLSA

Collective Action and for an Order for Notice to the Class” (Dkt. #34) GRANTED. The

collective action class is defined as: 

All current and former persons employed by Defendants and

compensated on an hourly or non-exempt salary basis by Defendants, on

or after October 8, 2012.

Plaintiffs are directed to modify the language of the proposed class notice consistent with this

opinion.

IT IS FURTHER ORDERED that the Defendants must furnish to counsel for the Plaintiffs

the last known post office and email addresses of the potential members of the described class

on or before January 13, 2017.

IT IS FURTHER ORDERED that the Plaintiff shall deliver notice promptly to putative

class members by United States mail, email, or both. The notice shall state that interested

persons may opt in to this litigation on or before March 13, 2017.

IT IS FURTHER ORDERED that counsel for the parties appear before the court for a

telephonic case management conference on January 17, 2017 at 10:00 a.m.. The Court will

initiate the call.. 

 s/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: December 9, 2016

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I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, December 9, 2016, by electronic and/or ordinary mail.

 s/Lisa Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

S:\Cleland\JUDGE'S DESK\C2 ORDERS\15-11428.HALL.classcertnotice.bss.wpd

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