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Law Offices of 

BONNETT, FAIRBOURN, 

FRIEDMAN & BALINT, P.C.

2325 E. Camelback Road, Suite 300 

Phoenix, Arizona 85016 

Telephone: (602) 274-1100 

Ty D. Frankel (027179) 

tfrankel@bffb.com 

Law Offices of 

BONNETT, FAIRBOURN, 

FRIEDMAN & BALINT, P.C.

600 W. Broadway, Suite 900 

San Diego, California 92101 

Telephone: (619) 756-7748 

Patricia N. Syverson (AZ Bar No. 020191) 

psyverson@bffb.com 

Law Offices of 

DEVON K. ROEPCKE, PC 

170 Laurel Street 

San Diego, California 92101 

Telephone: (619) 940-5357 

Devon K. Roepcke (AZ Bar No. 028495) 

droepcke@lawdkr.com

Attorneys for Plaintiff 

IN THE UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

James Saunders, 

 Plaintiff, 

v. 

Safelite Fulfillment, Inc., 

 Defendant. 

 Case No. 2:17-cv-03943-SPL 

 PLAINTIFF JAMES SAUNDERS’ 

MOTION FOR CONDITIONAL FLSA 

CLASS CERTIFICATION AND TO 

AUTHORIZE NOTICE TO 

SIMILARLY SITUATED PERSONS 

UNDER 29 U.S.C. § 216(b) AND FOR 

EXPEDITED DISCOVERY 

 

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Plaintiff James Saunders (“Saunders”) moves this Court for entry of an order: (1) 

conditionally certifying this lawsuit as a collective action under the Fair Labor Standards 

Act (“FLSA”); (2) authorizing Saunders to mail notice to other potential plaintiffs; (3) 

approving the Proposed Notice and Consent to Opt-In to Collective Action attached hereto 

as Exhibits 1 and 2, respectively; and (4) requiring that, within ten (10) days of the Court’s 

ruling on this Motion, Defendant Safelite Fulfillment, Inc. (“Safelite”) produce the names, 

addresses, and email addresses of all current and former Safelite employees who worked as 

Sales Representatives for Safelite from October 25, 2014 to the present (the 

“Representatives”). 

In support of this Motion, Saunders relies on the pleadings of record, a detailed 

declaration executed by James Saunders (Exhibit 3), and Safelite documents setting forth 

the Company’s compensation policies and procedures applicable to all the Representatives. 

The evidence and pleadings presented by Saunders sufficiently demonstrate that, pursuant 

to Safelite policy, Saunders and other similarly situated Representatives frequently were not 

paid overtime at the correct rate in violation of the FLSA, 29 U.S.C. §§ 201-219. Thus, 

Saunders respectfully requests that the Court conditionally certify this case as a collective 

action under section 216(b) of the FLSA and order that notice be issued on an expedited 

basis to all current and former Safelite employees who worked as Representatives for 

Safelite from October 25, 2014 to the present. 

MEMORANDUM OF POINTS AND AUTHORITIES 

I. INTRODUCTION 

James Saunders filed this collective action under the FLSA on behalf of himself and 

other similarly situated Safelite Representatives. Saunders alleges that Safelite 

Representatives were required to work significant hours for which they should have 

received proper overtime pursuant to the FLSA. Saunders alleges that Safelite failed to 

factor in non-discretionary “incentive pay” and other bonuses that Representatives earned 

in determining the hourly rate used to calculate overtime pay. This case presents precisely 

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the kind of wage and hour abuses the FLSA and Arizona’s wage laws are meant to remedy. 

Through this action, Saunders seeks to recover the overtime compensation the 

Representatives have earned but not been paid.1

 

Numerous similarly situated Representatives continue to be victimized by Safelite’s 

illegal wage practices. As a result, Saunders requests authorization to send notice to 

potential opt-in plaintiffs and expedite discovery of the names, addresses and email 

addresses of all current and former Safelite employees who worked as Representatives for 

Safelite from October 25, 2014 to the present.2

 

II. FACTUAL BACKGROUND 

 Safelite provides auto glass repair and replacement to customers throughout the 

United States. Compl. at ¶¶ 17, 20; Answer at ¶¶ 17, 20; Saunders Decl. at ¶ 4. Safelite 

employs hundreds of Representatives at its “Contact Center” – a call center in Chandler, 

Arizona. Compl. at ¶ 18; Answer at ¶ 18. Plaintiff Saunders was employed as a full-time, 

non-exempt employee by Safelite as a Telephone Sales Representative at its Chandler, 

Arizona “Contact Center” from in or around August 27, 2012 and continuing until January 

2018. Saunders Decl. at ¶¶ 2-3; Compl. at ¶ 9; Answer at ¶ 9. 

 All of the Representatives in Arizona had the same or similar job duties. Safelite’s 

Representatives were all uniformly responsible for fielding telephone calls from 

individuals with auto glass needs. Compl. at ¶ 21; Answer at ¶ 21; Saunders Decl. at ¶ 5. 

More specifically, Representatives, like Saunders, were responsible for daily activities 

such as: receiving incoming calls from potential consumers needing auto glass repair or 

 

1

 Saunders also alleges violations of the Arizona Wage Statute, A.R.S. §§ 23-351-353 and 

will pursue class action certification for his state claims under Federal Rule of Civil 

Procedure 23 at a later time. 

2

A two-year statute of limitations exists for filing a case under the FLSA, but when the 

causes of action arises from a willful violation, the statute of limitations extends to three 

years. 29 U.S.C. § 255(a); see also Sullivan v. City of Phoenix, 845 F. Supp. 698, 704 (D. 

Ariz. 1993). The statute of limitations continues to run for each individual’s claim until he 

or she opts in, and thus notifying potential opt-in plaintiffs of this action and their right to 

opt in is critical. 29 U.S.C. § 256(b); see also Chastain v. Cam, No. 3:13-cv-01802-SI, 

2014 WL 3734368, at *12 (D. Or. July 28, 2014). With each passing day, many 

Representatives suffer a reduction in the amount they can recover for Safelite’s violations 

of the FLSA. 

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replacement; scheduling the necessary service to be performed by a technician working at 

one of Safelite’s many Auto Glass Shops; and selling the customers new wiper blades to 

be installed at the time the glass service is performed. Compl. at ¶ 22; Answer at ¶ 22; 

Saunders Decl. at ¶ 6. Like Saunders, each of the Representatives was routinely required 

to work over forty hours per week as part of their regular schedule in order to perform their 

job duties. Compl. at ¶¶ 35-37; Saunders Decl. at ¶¶ 27-28, 38. 

Similarly, all of the Safelite Representatives, like Saunders, throughout Arizona 

were compensated in the same manner. Safelite provided its Representatives with written 

compensation policies and procedures applicable to all Representatives. Saunders Decl. at 

¶¶ 10-12 and Exhibit A. Representatives were paid an hourly wage. Saunders Decl. at ¶ 

7. For example, Plaintiff Saunders was paid an hourly wage of $10.32 when he first started 

working as a Safelite sales employee and his hourly wage eventually increased to $12.83. 

Saunders Decl. at ¶ 7; Compl. at ¶ 23; Answer at ¶ 23. 

Representatives were also paid non-discretionary incentive bonuses, including: (1) 

an attendance bonus of $1.00 per hour for working all hours scheduled; (2) sales incentive 

pay for meeting or exceeding company sales and retention goals; (3) phone statistic 

incentive pay meeting or exceeding company phone statistic goals; and (4) wiper blade 

incentive pay meeting or exceeding company wiper blade sales goals. Compl. at ¶ 24; 

Saunders Decl. at ¶¶ 8, 10-12; see also Saunders Decl. Exhibit A. When it is earned, this 

non-discretionary incentive pay is paid out every week on Plaintiff’s paycheck under the 

code “Comm TSR.” Compl. at ¶ 24; Saunders Decl. at ¶¶ 8, 10 and Exhibit A. The amount 

of the incentive pay was calculated at a specific percentage of the sales based on the specific 

customer group Representatives sold to (i.e., “commercial,” “insurance,” or “cash”). See

Compl. at ¶¶ 25-29; Saunders Decl. at ¶¶ 18-23 and Exhibit A. For example, if the sales 

goal for “cash” customers is to make sales in 45% of incoming “cash” customer calls, and 

the retention goal is 80%, meaning that 80% of the “cash” customers booked complete the 

services, Saunders would receive a 2% commission on all of his “cash” sales if he met or 

exceeded the sales and retention goals set by Safelite, and beat the sales and retention 

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average among his co-workers. Compl. at ¶ 20; Saunders Decl. at ¶¶ 22-23. And, if 

Saunders sold wiper blades to 20% of the customers he schedules for service, he received 

$1.50 in incentive pay for each wiper blade sold. Compl. at ¶ 31; Answer at ¶ 31; Saunders 

Decl. at ¶ 24; The incentive pay structure was provided to all Representatives. Saunders 

Decl. at ¶¶ 10-12 and Exhibit A. 

In addition to sales incentive pay, Safelite also has a practice of paying its employees 

a shift differential for certain shifts they work, including overnight, early morning, and 

weekend shifts. Shift differentials are between $0.50 and $0.75 per hour depending on the 

shift worked. Shift differentials are treated like bonuses to incentivize Representatives to 

work certain shifts. When it is earned, this non-discretionary incentive pay is paid out 

every week on Representatives’ paychecks under the code “Cc Shift Diff.” Compl. at ¶ 

33; Answer at ¶ 33; Saunders Decl. at ¶ 9. 

In addition to sales incentive pay and shift differentials, Safelite pays its 

Representatives quarterly and annual bonuses, which are non-discretionary. In order to 

receive this bonus, the employee has to have achieved certain numerical goals for the 

quarter or year period in which the payment is made. If an employee qualifies for the 

bonus, the amount of the bonus is based on the number of hours the employee worked 

during the applicable period. When it is earned, this non-discretionary incentive pay is 

paid out on a separate check under the code “Ic Corp Hourly.” Compl. at ¶ 34; Saunders 

Decl. at ¶ 26. 

Safelite, however, uniformly failed to pay Representatives, like Saunders, all the 

overtime wages they were due. For the overtime hours Safelite did compensate 

Representatives, Safelite failed to calculate the proper overtime rate by not factoring into 

a Representative’s regular rate of pay from which overtime is determined the amount of 

non-discretionary incentive pay (“Comm TSR”), and shift differentials (“Cc Shift Diff”) 

they earned each week. Compl. at ¶ 38; Saunders Decl. at ¶ 29. For example, Saunders’ 

pay statement for the week of March 12, 2016 through March 18, 2016 indicates that he 

worked 75.52 hours that week. Plaintiff was paid for 35.52 hours of overtime based on 

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one and one-half of his regular hourly rate of $12.83 per hour for that pay period. Safelite 

did not factor into his regular rate the $468.08 he earned in incentive pay, termed “Comm 

TSR,” on his pay statement for that pay period, or the $28.48 shift differential payment, 

termed “Cc Shift Diff,” thereby failing to properly calculate his overtime rate in violation 

of the FLSA. If Safelite had properly calculated Plaintiff’s overtime, his overtime rate for 

that week would have been $26.38 instead of $16.51. Safelite’s failure to properly 

calculate Plaintiff’s overtime rate caused him to be underpaid $116.78 for this week. See

Compl. ¶ 39 and Exhibit B (D.E. 1-2); Saunders Decl. ¶ 30 and Exhibit C. 

Thus, Safelite engaged in uniform improper policies and compensation practices 

that applied to and impacted Saunders and all similarly situated Representatives he purports 

to represent. Compl. at ¶¶ 40-43. Saunders learned through management communications, 

meetings and trainings, and observations of and conversations with other employees that 

Safelite’s compensation policies applied uniformly to all Sales Representatives. Saunders 

Decl. at ¶¶ 31-32. Safelite provided its sales employees, including Saunders, with written 

policies and procedures uniformly applicable to all employees governing the applicable 

compensation practices. Saunders Decl. at ¶¶ 10-12, 33. 

In addition, the uniformity of the policies can be gleaned from Safelite’s computer 

system utilized by the Representatives. Safelite has a computer system called “Safelite 

University” that contains important job-related information, as well as training modules 

and quizzes. Safelite’s compensation policies and procedures, as well as any changes to 

them, are contained in the “Safelite University” system. Saunders Decl. at ¶ 33. Any time 

there were changes to the bonus structure or any other policy at Safelite, a document called 

a “Fact Sheet” would be generated that stated the changes. A paper copy of the “Fact 

Sheet” would be placed at each workspace, and an electronic copy would be sent via email 

to each employee, and it would also be available in “Safelite University”. Saunders Decl. 

at ¶ 14. Once Representatives reviewed the “Fact Sheet,” they had to log into “Safelite 

University” and take a quiz on the policy changes to ensure that they understood them. If 

they did not pass the quiz, they would have to meet with a supervisor to have the policy 

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explained to them. If there were any quizzes not yet completed, they would have to 

complete them before they were able to access any of the other sections of “Safelite 

University”. Saunders Decl. at ¶¶ 15-17 and Exhibit B. 

In addition, Saunders has first-hand knowledge that Safelite’s compensation 

policies applied uniformly to all Representatives from having conversations with other 

Representatives who have the same or similar job duties as he does. Saunders Decl. at ¶ 

17. Saunders has first-hand knowledge that as a condition of employment, all TSRs in the 

Sales Department at Safelight signed the same bonus structure agreement that he did. 

Saunders Decl. at ¶¶ 10-12, 34. He is aware of this because it was part of the required 

materials in “Safelite University”. In addition, from having conversations with others, 

including the four individuals Saunders personally identified in his declaration, Saunders 

is aware that all other TSRs in the Sales Department at Safelight were qualified to receive 

the same “Comm TSR” non-discretionary incentive bonuses that he received. Saunders 

Decl. at ¶ 34. Further, Saunders had conversations with two individuals who worked as 

TSRs at the Special Services Desk regarding their compensation policies. Saunders Decl. 

at ¶ 35. While those individuals did not qualify to receive “Comm TSR” non-discretionary 

incentive bonuses, they did qualify to receive the same wiper blade bonus that Sales 

Department TSRs received. Saunders Decl. at ¶ 35. 

In addition, from having conversations with others, including the six individuals 

Saunders identified in his declaration, Saunders is aware that all TSRs at the Safelite call 

center were subject to the policy of paying shift differentials based on the hours worked 

and are qualified to receive the same non-discretionary quarterly and annual bonuses based 

on their sales. Saunders Decl. at ¶¶ 10-12, 36-37. 

Saunders has personal knowledge from other similarly situated Representatives that 

when they were paid overtime, the non-discretionary pay they received was not factored 

into their regular rate of pay for purposes of calculating their overtime rate. Their payroll 

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records will definitively prove this to be true. Saunders Decl. at ¶¶ 38-39.3

III. LEGAL ARGUMENT 

A. CONDITIONAL CERTIFICATION OF AN FLSA COLLECTIVE 

ACTION IS APPROPRIATE BECAUSE SAUNDERS IS 

SIMILARLY SITUATED TO PUTATIVE OPT-IN PLAINTIFFS. 

 Congress enacted the FLSA to shield employees from oppressive working hours 

and substandard wages. See Barrentine v. Arkansas-Best Freight Sys., 450 U.S. 728, 739 

(1981). The FLSA enables workers to receive “[a] fair day’s pay for a fair day’s work” 

and protects them from the “evil of ‘overwork’ as well as ‘underpay.’” Overnight Motor 

Transp. Co. v. Missel, 316 U.S. 572, 578 (1942) (quoting 81 CONG. REC. 4983 (1937) 

(message of President Roosevelt)). The FLSA exists to protect employees from precisely 

the type of unlawful wage policies and procedures established by Safelite. 

Pursuant to 29 U.S.C. § 216(b) of the FLSA, courts may authorize notice to a class 

that is “similarly situated” to the named plaintiff. Stickle v. SCI W. Mkt. Support Ctr., No. 

08-083-PHX-MHM, 2009 WL 3241790, at *1 (D. Ariz. Sept. 30, 2009); Wertheim v. State 

of Arizona, No. CIV 92-453 PHX RCB, 1993 WL 603552, at *2 (D. Ariz. Sept. 30, 1993). 

If the plaintiff satisfies the requisite “notice stage” determination that plaintiffs are 

similarly situated, conditional certification of the proposed class is proper and the case 

should proceed to the period of notification, which will permit potential class members to 

opt into the lawsuit.4

 See Stickle, 2009 WL 3241790, at *2; Wertheim, 1993 WL 603552, 

 

3 The evidence set forth above is based on Plaintiff’s first-hand knowledge and a select few 

Safelite company documents that Plaintiff had in his possession. While Plaintiff believes 

that Safelite has additional information and documents that will support Plaintiff’s claims, 

Safelite has yet to produce such discovery in response to Plaintiff’s requests, which may 

become the issue of a discovery dispute in the near future. However, given that time is of 

the essence as the statute of limitations is continuing to run for each individual’s claim, 

Plaintiff believed it was important to file his motion as soon as possible and that the 

evidence presented to the Court is more than sufficient to satisfy the “lenient” standard by 

which conditional certification is to be judged. See Section III(A)(1), below. 

4

 Courts also accept consents to opt-in to the action from similarly situated employees who 

join the case prior to the court’s official authorization of noticing other similarly situated 

persons. See Wertheim, 1993 WL 603552, at *8. 

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at *1. The “similarly situated” standard utilized for collective action certification is less 

stringent than the requirements of Federal Rule of Civil Procedure 23(b)(3). Taylor v. 

AutoZone Inc., No. CV-10-8125-PCT-FJM, 2014 WL 5843522, at *2 (D. Ariz. Nov. 12, 

2014) (FLSA “similarly situated” standard “remains less stringent than the requirement 

that common questions predominate in certifying class actions under Rule 23”); see also

Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996) (finding that claims and 

positions of employees need not be identical to meet § 216(b) similarly situated standard); 

Wilson v. Maxim Healthcare Servs., Inc., No. C14-789RSL, 2014 WL 7340480, at *2 

(W.D. Wash. Dec. 22, 2014) (noting that the “similarly situated” standard is “considerably 

less stringent” than Rule 23’s requirement that common questions predominate over 

individual ones). 

1. The initial conditional certification requirement is “lenient.” 

“The majority of courts,’ including those within the District of Arizona, have 

‘adopted the two-tiered approach[]’ in deciding whether to grant FSLA [sic] collection 

action status.” Villarreal v. Caremark LLC, No. CV-14-00652-PHX-DJH, 2014 WL 

4247730, at *3 (D. Ariz. Aug. 21, 2014) (citing Anderson v. Ziprealty, Inc., No. CV 2012-

0332-PHX-JAT, 2013 WL 1882370, at *2 (D. Ariz. May 3, 2013) (citing cases)); Barrera 

v. U.S. Airways Group, Inc., No. CV-2012-02278-PHX-BSB, 2013 WL 4654567, at *2 (D. 

Ariz. Aug. 30, 2013) (same); Stickle, 2009 WL 3241790, at *2 (same).5

 “‘At this first 

stage, the court require[s] nothing more than substantial allegations that the putative class 

members were together the victims of a single decision, policy, or plan.’” Villarreal, 2014 

WL 4247730, at *3 (quoting Stickle, 2009 WL 3241790, at *2) (internal quotation marks 

and citations omitted). “‘All that need be shown by the plaintiff is that some identifiable 

factual or legal nexus binds together the various claims of the class members in a way that 

 

5 This two-tiered approach utilized in this District has been affirmed by five United States 

Courts of Appeals. See White v. Baptist Mem’l Health Care Corp., 699 F.3d 869, 877 (6th 

Cir. 2012)); Myers v. Hertz Corp., 624 F.3d 537, 554–55 (2d Cir. 2010); Sandoz v. 

Cingular Wireless LLC, 553 F.3d 913, 915 n.2 (5th Cir. 2008); Morgan v. Family Dollar 

Stores, Inc., 551 F.3d 1233, 1260 (11th Cir. 2008); Thiessen v. Gen. Elec. Capital Corp., 

267 F.3d 1095, 1105 (10th Cir. 2001). 

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hearing the claims together promotes judicial efficiency and comports with the broad 

remedial policies underlying the FLSA.’” Wertheim, 1993 WL 603552, at *1. What is 

more, “‘[p]laintiffs need show only that their positions are similar, not identical, to the 

positions held by the putative class members.’” Juvera v. Salcido, 294 F.R.D. 516, 520 (D. 

Ariz. 2013) (quoting Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1217 (11th Cir. 

2001)). 

The requirement is a “lenient” burden of illustrating that a plaintiff is similarly 

situated to others, which may be satisfied with affidavits and the complaint alone. Goudie 

v. Cable Commc’ns, Inc., No. 08-CV-507-AC, 2008 WL 4628394, at *3-4 (D. Or. Oct. 14, 

2008; see also Bonilla v. Las Vegas Cigar Co., 61 F. Supp. 2d 1129, 1138-39 (D. Nev. 

1999); Adams v. Inter-Con Sec. Sys., Inc., 242 F.R.D. 530, 536 (N.D. Cal. 2007). As can 

be seen, at this initial, so-called notice stage, a plaintiff’s burden “is low.” Villarreal, 2014 

WL 4247730, at *3 (citing, inter alia, Wellens v. Daiichi Sankyo Inc., No. C-13-00581 

DMR, 2014 WL 1422979, at *2 (N.D. Cal. Apr. 11, 2014) (internal quotation marks and 

citations omitted) (“[S]ome court have held that the plaintiff bears a very light burden in 

substantiating allegations at this [notice] stage.”)) “The Court uses a fairly lenient standard 

because the Court does not have much evidence” in that ordinarily, as here, discovery is 

just commencing. See Juvera, 294 F.R.D. at 520 (citing Hipp, 252 F.3d at 1217–1218) 

(other citation omitted). 

2. Safelite’s employment practices are uniformly applied to all of the 

Representatives. 

 Given this lenient burden, motions to certify a class for notification purposes are 

“typically” granted. Kesley v. Entm’t U.S.A. Inc., 67 F. Supp. 3d 1061, 1065 (D. Ariz. 

2014); Villarreal v. Caremark LLC, 66 F. Supp. 3d 1184, 1189 (D. Ariz. 2014). Saunders 

need only show an identifiable factual or legal nexus between his claims and those of the 

similarly situated Representatives, such that hearing the claims together promotes judicial 

efficiency and comports with the broad remedial policies of the FLSA. See Stickle, 2009 

WL 3241790, at *3 (citing Wertheim, 1993 WL 603552, at *1). In fact, district courts have 

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consistently granted motions for conditional certification under the FLSA in actions 

brought by individuals who worked as sales representatives. See, e.g., Padan v. West 

Business Solutions, LLC, No. 2:15-cv-00394-GMN-CWH, 2016 WL 304303, at *2-*3 (D. 

Nev. Jan. 25, 2016) (conditionally certifying class of customer service representatives at 

call center alleging practice of unpaid off the clock work and unpaid overtime); Isaacs v. 

One Touch Direct, LLC, No. 8:14-CV-1716-T-30, 2015 WL 248658, at *3 (M.D. Fla. Jan. 

20, 2015) (conditionally certifying class of call center agents who alleged overtime rate 

failed to include commissions); Sherrill v. Sutherland Global Services, Inc., 487 F.Supp.2d 

344, 346-50 (W.D. N.Y. 2007) (same); Russell v. Illinois Bell Telephone Co., 575 

F.Supp.2d 930, 934-37 (N.D. Ill. 2008) (conditionally certifying class of call center 

employees who alleged off the clock work and unpaid overtime). 

Here, Saunders easily satisfies the standard for conditional certification. The key 

issue is whether the Representatives were properly compensated for the hours they worked. 

The key facts in this case revolve around uniform compensation policies that apply to all 

of the Representatives. Under the FLSA, employers must provide proper overtime 

compensation for hours worked in excess of forty in a workweek. The pleadings and 

evidence demonstrate that all of the Representatives performed the same or similar duties 

and under the same conditions. Compl. at ¶¶ 40-43; Saunders Decl. at ¶¶ 11-17, 33-38. 

Yet, according to Safelite’s uniform compensation policies and practices, Representatives 

did not receive overtime compensation calculated at the proper rate. Compl. at ¶¶ 38-43; 

Saunders Decl. at ¶¶ 29-32, 39. 

 Given the foregoing analysis, Saunders has more than satisfied the similarly situated 

requirement, especially given that the “lower standard for conditional certification 

applies.” See Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 678 (D. Colo. 1997) (“At 

the notice stage, courts . . . require nothing more than substantial allegations that the 

putative class members were together the victims of a single decision, policy, or plan[.]”) 

(internal quotation marks and citation omitted). The Court should certify this matter as a 

collective action under the FLSA so that notice to other Representatives can go forward. 

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B. NOTICE SHOULD BE GIVEN TO SIMILARLY SITUATED 

REPRESENTATIVES. 

The many other similarly situated Representatives victimized by Safelite’s practices 

should be notified about this lawsuit so they may opt-in if they desire. While the FLSA 

does not provide specific procedures by which claimants may opt-in, the United States 

Supreme Court has held that “district courts have discretion, in appropriate cases, to 

implement 29 U.S.C. § 216(b) . . . by facilitating notice to potential plaintiffs.”6

 HoffmannLa Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989). 

The court’s facilitation of notice to potential opt-in plaintiffs serves the broad 

remedial purpose of the FLSA. See Brooks v. BellSouth Telecomms., Inc., 164 F.R.D. 561, 

566 (N.D. Ala. 1995). As the Supreme Court explained, the benefits of a collective action 

proceeding under § 216(b) “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.” Hoffman-LaRoche, 493 U.S. at 170. Once the Court certifies 

the collective action, there is a strong presumption that authorization of notice follows. See 

Wertheim, 1993 WL 603552, at *6 (providing plaintiffs with multiple chances to draft an 

acceptable form of notice after defendants’ objections to language in notice); see Ballaris 

v. Wacker Silttronic Corp., No. 00-1627-KI, 2001 WL 1335809 at *3 (D. Or. Aug. 24, 

2001) (judge offering “If the parties are unable to reach agreement [on the form of notice], 

I am available to assist via a telephone conference”). 

 The requirement for notice is the same similarly situated standard applied in the 

decision to certify the action as collective. The plaintiff must establish that there are 

similarly situated individuals who may desire to opt into the action. See Dybach v. State 

of Florida Dept. of Corrections, 942 F.2d 1562, 1567-68 (11th Cir. 1991); see Camper v. 

 

6

 Although Hoffman-La Roche involved litigation arising under the Age Discrimination in 

Employment Act, subsequent courts have adopted its holding in actions arising under the 

FLSA, including the District of Arizona. Villarreal v. Caremark LLC, 2014 WL 4247730 

(D. Ariz. Aug. 21, 2014); see also Shaffer v. Farm Fresh, Inc., 966 F.2d 142, 147 n.5 (4th 

Cir. 1992); H & R Block, Ltd. v. Housden, 186 F.R.D. 399, 400 (E.D. Tex. 1999); Garner 

v. G.D. Searle Pharm. & Co., 802 F. Supp. 418, 422 (M.D. Ala. 1991). 

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Home Quality Mgmt., Inc., 200 F.R.D. 516, 519-20 (D. Md. 2000) (explaining that prior to 

issuing notice in a collective action, plaintiffs must make “some factual showing by 

affidavit or otherwise” that potential plaintiff group is similarly situated); D’Anna v. M/ACOM, Inc., 903 F. Supp. 889, 893-94 (D. Md. 1995) (requiring only a “preliminary factual 

showing that a similarly situated group of potential plaintiffs exists” prior to issuing 

notice). This lenient requirement is satisfied by a “modest factual showing” that the named 

plaintiffs and other potential plaintiffs “were victims of a common policy or plan that 

violated the law.” Gjurovich v. Emmanuel’s Marketplace, Inc., 282 F. Supp. 2d 101, 104 

(S.D.N.Y. 2003); Realite v. Ark Rests. Corp., 7 F. Supp. 2d 303, 306 (S.D.N.Y. 1998). 

When analyzing whether the plaintiff has made the required showing, the court should not 

evaluate the merits of the plaintiffs’ claim. Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 

262 (S.D.N.Y. 1997). Also, “[f]actual disputes do not negate the appropriateness of court 

facilitated notice.” Camper, 200 F.R.D. at 520. 

 As explained above, Saunders readily satisfies the similarly situated standard. The 

pleadings and evidence demonstrate that he and similarly situated Representatives have the 

same or similar job duties and are subject to the same uniform rules and policies 

systematically imposed on them by Safelite. The Representatives were improperly denied 

overtime wage compensation calculated at the proper rate according to company policies 

uniformly applied to them. See Section II, above. Absent notice, the Representatives likely 

will not receive timely, complete and accurate information about this action, nor will they 

have meaningful access to the court or an efficient method of vindicating their rights. Cf.

Hoffman-LaRoche, 493 U.S. at 170 (“[a] collective action allows . . . plaintiffs the 

advantage of lower individual costs to vindicate rights by the pooling of resources”). 

C. NOTICE MUST BE EXPEDITED DUE TO THE RUNNING OF THE 

STATUTE OF LIMITATIONS. 

 Similarly situated Representatives unknowingly depend on this Court to authorize 

notice of the pendency of this case. Notice to prospective plaintiffs should be expedited to 

toll the running of the statute of limitations as to the claims of potential opt-ins. Under 

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applicable provisions of the Portal-to-Portal Pay Act, the statute of limitations on the claims 

of potential plaintiffs continues to run until each individual files a written consent to join 

the action as a party plaintiff. See 29 U.S.C. § 256. Since similarly situated 

Representatives’ claims are eroding with each passing day, notice should be promptly 

authorized to reduce the losses suffered. In fact, courts have tolled the statute of limitations 

during the pendency of a decision for conditional certification for equitable reasons. See 

McGlone v. Contract Callers, Inc., 867 F. Supp. 2d 438, 445 (S.D.N.Y. 2012). 

 Authorizing early notice to potential plaintiffs follows the Supreme Court’s 

suggestion that a district court “begin its involvement early, at the point of the initial notice” 

in actions brought under § 216(b). Hoffmann-La Roche, 493 U.S. at 171. The Court 

discussed the benefits of early involvement by courts: 

A trial court can better manage a major [FLSA] action if it ascertains the 

contours of the action at the outset. The court is not limited to waiting 

passively for objections about the manner in which the consents were 

obtained. By monitoring preparation and distribution of the notice, a court can 

ensure that it is timely, accurate, and informative. Both the parties and the 

court benefit from settling disputes about the content of the notice before it is 

distributed. This procedure may avoid the need to cancel consents obtained in 

an improper manner. 

Id. at 171-72. Notice must therefore be expedited because time is of the essence. 

D. THE PROPOSED NOTICE IS FAIR AND ADEQUATE. 

 As stressed by the Supreme Court, the effectiveness of a collective action depends 

“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.” 

Id. at 170. A court-authorized notice prevents dissemination of “misleading 

communications” and reduces the likelihood that subsequent corrective notices will be 

necessary. Id. at 171. 

 Saunders’ proposal for court-approved notice, which is attached as Exhibit 1, is 

“timely, accurate, and informative,” id. at 172, and is similar to the types of notices 

approved by other courts. See, e.g., Gjurovich, 282 F. Supp. 2d at 106-08. The Proposed 

Notice includes the following information: 

 provides notice of the pendency of the action (Ex. 1, § I); 

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 accurately describes Saunders’ claims and Safelite’s 

denial of liabilities (Ex. 1, § II); 

 accurately describes the composition of the class (Ex. 1, § III); 

 notifies potential plaintiffs of the opportunity to opt-in, explains the 

procedure for exercising their right to opt-in and informs individuals that 

they are not required to participate (Ex. 1, §III); 

 explains the legal effects of joining the lawsuit and the legal effects of 

 not participating in the lawsuit (Ex. 1, §§ IV & V); 

 advises that the Court expresses no opinion regarding the merits of 

Saunders’ claims or Safelite’s liability (Ex. 1, § VI); 

 accurately recites the prohibition against retaliation for 

participation in an FLSA action (Ex. 1, § VII); and, 

 accurately conveys the unenforceability of any waiver of rights to 

compensation due under the FLSA (Ex. 1, § VIII). 

 Saunders requests that the attached Proposed Notice and Consent to Opt-In to 

Collective Action be mailed by first class mail to all current and former Safelite employees 

who worked as Representatives for Safelite from October 25, 2014 to the present. Those 

individuals interested in participating would be required to return their consents to 

Saunders’ counsel in time for their consents to be filed with the Court within 90 days of 

the mailing of the notice. See Ambrosia v. Cogent Commc’ns, Inc., 312 F.R.D. 544, 559 

(N.D. Cal. 2016) (approving 90 day deadline for filing consents); Adams, 242 F.R.D. at 

542 (same). To the extent notice is returned as undeliverable, Saunders requests that the 

Proposed Notice and Consent to Opt-In to Collective Action be emailed to the individual 

using the last known email address provided by Safelite. The Proposed Notice is fair and 

accurate and should be approved for distribution. 

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IV. SAUNDERS’ REQUEST FOR EXPEDITED DISCOVERY OF NAMES AND 

ADDRESSES OF ALL CURRENT AND FORMER REPRESENTATIVES IS 

ESSENTIAL TO ENSURE ACCURATE AND TIMELY NOTICE 

Saunders seeks expedited discovery of the names, addresses and email addresses of 

all current and former Safelite employees who worked as Sales Representatives for Safelite 

from October 25, 2014, to the present, so they may receive the Proposed Notice and 

Consent to Opt-In to Collective Action form. This information is clearly relevant to the 

subject matter of the action. See Hoffmann-La Roche, 493 U.S. at 170 (holding that the 

requirement that a defendant produce the names and addresses of former employees for the 

purposes of facilitating notice is “relevant to the subject matter of the action and that there 

were no grounds to limit the discovery under the facts and circumstances of [the] case”). 

Production of this information is not only proper but is necessary to ensure all potential 

plaintiffs receive notice informing them of the action and their opportunity to opt in. See 

Gjurovich, 282 F. Supp. 2d at 108 (ordering defendants to produce the names and addresses 

of similarly situated individuals to facilitate distribution of the court-approved notice); 

Taylor v. AutoZone, Inc., No. CV-10-8125-PCT-FJM, 2011 WL 2038514, at *5 (D. Ariz. 

May 24, 2011); Rodriguez v. SGLC, Inc., No. 2:08-cv-01971-MCE-KJM, 2009 WL 

454613, at *2 (E.D. Cal. Feb. 5, 2009). 

 Due to the time sensitivity of this action, Saunders requests an order for Safelite to 

produce the relevant names, addresses and email within ten (10) days of the Court’s ruling 

on this Motion. Saunders also requests that the names and contact information be provided 

in electronic format (e.g., an Excel spreadsheet), as well as in hard copy format, to further 

expedite the notice process. 

V. CONCLUSION 

 Saunders’ evidence satisfies the minimal preliminary showing that he and other 

similarly-situated employees who worked as Representatives did not receive overtime 

calculated at the correct rate in violation of the FLSA. Certification of this lawsuit as a 

collective action and the issuance of notice is therefore appropriate. Saunders requests that 

the Court approve the Proposed Notice, which fairly and accurately describes the litigation 

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and the potential plaintiffs’ rights to participate. Finally, to facilitate distribution of the 

court-authorized notice, Saunders requests that Safelite be ordered to immediately produce 

the names and last known addresses and emails of all current and former Safelite 

employees who worked as Representatives for Safelite from October 25, 2014, to the 

present. 

DATED: May 4, 2018 BONNETT, FAIRBOURN, FRIEDMAN 

& BALINT, P.C. 

By /s/ Ty D. Frankel 

Ty D. Frankel 

2325 E. Camelback Road, Suite 300 

Phoenix, Arizona 85016 

Telephone: (602) 274-1100 

BONNETT, FAIRBOURN, FRIEDMAN 

& BALINT, P.C. 

Patricia N. Syverson 

600 W. Broadway, Suite 900 

San Diego, California 92101 

Telephone: (619) 756-7748 

Law Offices of 

DEVON K. ROEPCKE, PC 

Devon K. Roepcke (AZ Bar No. 028495) 

170 Laurel Street 

San Diego, California 92101 

Telephone: (619) 940-5357 

 Attorneys for Plaintiff 

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CERTIFICATE OF SERVICE 

 

 I, Karen Vanderbilt, hereby certify that a true copy of the foregoing document 

filed through the ECF system will be electronically sent to the registered participants 

as identified on the Notice of Electronic Filing, and paper copies will be sent to those 

indicated as non-registered participants on May 4, 2018. 

/s/ Karen Vanderbilt 

Case 2:17-cv-03943-SMB Document 23 Filed 05/04/18 Page 18 of 18