NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

DORIS ASIRIFI and CHINWE

NWAFOR, : Hon. Dennis M. Cavanaugh

Plaintiffs, : OPINION

v. : Civil Action No, 2:11 -cv-04039 (DMC)(JBC)

WEST HUDSON SUB-ACUTE CARE

CENTER. LLC,

Defendant.

DENNIS M. CAVANAUGH, U.S.D.J.:

This matter comes before the Court upon the Motion for Conditional Class Certification

by Plaintiffs Doris Asirifi and Chinwe Nwafor (collectively “Plaintiffs”). Pursuant to FED. R.

Civ. P 78, no oral argument was heard. Based on the following and for the reasons expressed

herein. Plaintiffs’ Motion for Conditional Certification is denied without prejudice.

I. BACKGROUNI) 1

Plaintiffs were employed as registered nurses at West Hudson Sub-Acute Care Center.

LLC (“West Hudson”). a nursing facility. Plaintiffs claim that they are owed minimum wages

and overtime under the Fair Labor Standards Act, 29 U.S.C. § 201. et seq. (“FLSA’) and under

New Jersey Wage and Hour Law, N.J.S.A. 34:11 -56a e seq. (“NJWHL”). and seek to maintain

this action individually and as a collective action under the ELSA. Plaintiffs assert that

i)efendant regularly deducted thirty minutes of paid time from Plaintiffs’ shits to represent an

The facts from this section are taken from the parties’ pleadings.
unpaid meal break, regardless of whether such break was taken. Plaintiffs also claim that they

worked in excess of their regularly scheduled shifis and were not paid for this time.

Plaintiffs filed a Complaint on July 14. 2011 (ECF No. 1), an Amended Complaint on

March 16. 2012 (ECF No. 3 1). and a Second Amended Complaint on April 30. 2012 (FCF No.

40). Deftndant filed a Motion to Dismiss the Second Amended Complaint on June 7. 2012 (FCF

No. 43). This Motion was denied on January 29, 2013 (ECF No. 50). Defendant filed an Answer

on February 28, 2013 (ECF No. 58). Plaintiffs filed the instant Motion for Conditional

Certification on July 23, 2013 C’Pl.’s Mot.,” ECF No. 76). Defendant filed an Opposition on

August 20, 2013 (ECF No. 81). Plaintiffs tiled a Reply on August 27. 2013 (ECF No. 83).

IL STANDARD OF REVIEW

The Lair Labor Standards Act (“FLSA”) governs hour and wage practices and requires.

among other things. that employers pay covered employees at least a specified minimum wage

for work performed and overtime pay for hours worked in excess of forty hours per week. 29

U.S.C. § 202, 207. The Act provides a mechanism that allows groups of such employees to

proceed together to seek recovery for violations of the act. Section 216(b) specifically provides:

[ajn action to recover ... liability may be maintained against any employer ... by 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 any action unless he

gives his consent in writingto become such a party and such consent is filed in the

court in which such action is brought.

29 U.S.C. § 2 16(b). This provision allows a group of employees to proceed in a collective action.

which enables them to pool their resources to “vindicate their rights” at a lower cost. Hoffmann—

La Roche. Inc. v. Sperling. 493 U.S. 165, 170 (1985).

District courts have discretion in prescribing the terms of notice of communication from

the nmcd plaintitts to potential class membcis on vhose beh ill the action v s filed i4 it
1 6k). In order ftr a collective action to proceed under § 216(h): (1) named plaintiffs must show

that potential class members are “similarly situated” and (2) members must affirmatively opt

in. $g Armstrong v. Weichert Rea1tor No. 05—3 120, 2006 WL 1455781, at *1 (D.Ni. May 19,

2006).

Although the FLSA does not define “similarly situated,” courts in the United States Court

of Appeals for the Third Circuit employ a two—step approach: a notice and conditional

certilication stage, and a tinal certification or decerti Ication stage. First, the court determines

whether potential class members are similarly situated and should be given notice of the

action. See Herring v. Hewitt Assocs., Inc., No. 06—267, 2007 U.S. Dist. LEXIS 53278 at *6_7

(D.NJ. July 27, 2007) (citing Morisky v. Public Service Elec. & Gas Co., 111 F.Supp.2d 493,

497 (D.N.J. 2000)). At this stage, the court usually only has evidence before it in the form of

pleadings and affidavits, so it uses a fairly lenient standard to determine whether potential

collective action members are similarly situated and the courts determination “typically results

in conditional certification of a representative class.” Id. at * 7. Plaintiffs must show a “factual

nexus between their situation and the situation of other current and former [employees] suffIcient

to determine that they are ‘similarly situated.” Herring, 2007 U.S. Dist. LEXIS 53278. at * 13

(quoting Aguilino v. The Home Depot, Inc., No. 04—4100, 2006 U.S. Dist. LEXIS 66084, at *5

(D.N.J. Sept. 6, 2006)). The merits of the plaintiffs claim need not be evaluated and discovery

need not he completed in order for such notice to be granted and disseminated, Id. at * 14. Even

if the Court conditionally certifies and provides notice to potential plaintiffs. “there is nothing to

prevent a court from ‘modifying or reversing a decision on similar situations at a later time in the

action, as new facts emerge.” Id. at *12 (quoting Sperling v. Hoffman—Lakoche, 118 F.R.D.

392, 407 (D.N.J. 1988)).

3
At the second stage, after the court has more evidence and is ready ftr trial, it will apply a

stricter standard, See Morisky, ill F.Supp.2d at 497. If the court finds that the plaintiffs are

similarly situated, it will make a final decision to proceed as a class action. Id.

III. DISCUSSION

The only issue before the Court at this stage is whether Plaintiffs have shown that they

are similarly situated to potential class members. In Wright v. Lehigh Valley Hosp.. No. 10-43 1.

2010 WL 3363992, at i (E.D. Pa. Aug. 24, 2010). the plaintiff, a nurse, claimed that she and

other nurses were not compensated for work they performed during overtime hours. The plaintilY

stated that her paychecks and paystubs failed to accurately reflect her hours, and claimed that she

‘worked alongside other registered nurses who similarly worked before and after their shifts

without being properly paid.” Id. at * 1. 4. However, the plaintiff provided no evidence to show

the existence of these other similarly situated nurses. Id. at *4 The court fbund that “[the

plaintiffs] argument that Defendants must have violated other nurses rights because their

uniform policies and procedures allegedly violated her rights is insufficient to satisfy the modest

factual sho\mg test Id See also Rogeis Ocean Cable Gip Inc ,No 10-41 98, 2011 \\ I

6887154, at *4 (D.N.J. Dec. 29, 2011) (“Although each plaintiff submitted an affidavit stating

they worked in excess of 40 hours in a workweek, what they are essentially asking the Court to

do is to assume that because they worked in excess of 40 hours in a workweek that the other

technicians must have as well.”).

Similarly, in the present case, Plaintiffs have submitted time cards to evidence the hours

that they worked and argue that other potential class members are similarly situated because

Defendant’s policy was “uniformly instituted again all non-exempt employees” and “resulted in

hourly employees being denied proper compensation for all hours worked” (P1.’ s Mot. at II).

4
This argument suffers from the same flaw that existed in the arguments set forth in iigt and

Rogers, as the alleged application of a uniform policy does not, without more, show that

potential class members are similarly situated. Accordingly, Plaintiffs’ Motion is denied without

prej udice.

IV. (1)NCLUSION

lor the foregoing reasons, Plaintiffs’ Motion for Conditional Certification is (ICfliC(1

without prejudice. An appropriate order follows this Opinion.

Date: January 2Ol4

Original: Clerks Office

cc: Hon. James B. Clark U.S,M.J.

All Counsel of Record

File