Chapter § 2-65 29 U.S.C.A. § 216(b): Class Certification

• Jurisdiction: United States

2-65 29 U.S.C.A. § 216(b): Class Certification

(b) Damages; right of action; attorney's fees and costs; termination of right of action.

Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Any employer who violates the provisions of section 215(a)(3) of this title shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) of this title, including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages. An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction 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 any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action. The right provided by this subsection to bring an action by or on behalf of any employee, and the right of any employee to become a party plaintiff to any such action, shall terminate upon the filing of a complaint by the Secretary of Labor in an action under section 217 of this title in which (1) restraint is sought of any further delay in the payment of unpaid minimum wages, or the amount of unpaid overtime compensation, as the case may be, owing to such employee under section 206 or section 207 of this title by an employer liable therefor under the provisions of this subsection or (2) legal or equitable relief is sought as a result of alleged violations of section 215(a)(3) of this title.

Note that the Fifth Circuit in a case ruled on when a district court should consider the applicability of an arbitration agreement in the certification process.

• Reyna v. Int'l Bank of Commerce, 839 F.3d 373 (5th Cir. 2016) (reversing district court and holding that upon a motion to compel arbitration, a court should address the arbitrability of the plaintiff's claim at the outset of litigation; here, because the arbitration agreement contained a delegation clause, the court was required to refer the dispute to arbitration).

2-65:1 Commentary

2-65:1.1 Class Certification and the Southern District of Texas

2-65:1.1a Merit Arguments During Conditional Certification

An interesting issue is the conditional certification of employees allegedly mis-classified as independent contractors. One Texas court has approved of conditional certification in this circumstance.

• Walker v. Honghua America, LLC, 870 F. Supp. 2d 462 (S.D. Tex. 2012) (court rejects defendant's argument that independent contractor status versus employee status is not a question that lends itself to determination as a collective action, noting that numerous courts have granted conditional certification in FLSA cases over whether workers were misclassified as independent contractors; court notes split of authority on whether economic realities test should be utilized in determining whether to conditionally certify, and that such an analysis is better addressed through a decertification motion because making this analysis during the notice phase would impermissibly delve into the merits of plaintiffs' claims).
• Rodriguez v. Flowers Foods, Inc., No. 4:16-CV-245, 2016 U.S. Dist. LEXIS 171883 (S.D. Tex. Dec. 13, 2016) (agreeing that employee versus independent contractor issue goes to merits of case and thus is inappropriate to raise at certification stage).

Naturally, certification is denied when the lead plaintiff only makes a bare statement that he "knows that other current and former employees . . . would be interested to learn about this lawsuit."

• Salais v. Houston Distributing Co., Inc., No. 4:16-CV-2715, 2017 WL 2909002 (S.D. Tex. July 7, 2017) (insufficient, plaintiff needs to also show that those individuals are likely to opt in, relying upon Pacheco v. Aldeeb, No. 5:14-CV-121-DAE, 2015 WL 1509570 (W.D. Tex. Mar. 31, 2015)).

Moreover, courts in the Southern District routinely reject defense arguments that would insert merit-based arguments into the notice phase of the conditional certification process.

• Coffin v. Blessey Marine Servs., Inc., No. H-11-0214, 2011 WL 1103795, at *3 (S.D. Tex. Mar. 23, 2011) (denying defendant's request for discovery on the merits relating to an exemption at the conditional certification stage).
• Dreyer v. Baker Hughes Oilfield Ops., Inc., No. H-08-1212, 2008 WL 5204149, at *2 (S.D. Tex. Dec. 11, 2008) (rejecting defendant's argument that several FLSA exemptions counsel against conditional certification because exemptions are merit-based defenses to an FLSA claim, and thus the "possible applicability of one or more of them cannot defeat conditional certification.").
• Foraker v. Highpoint Southwest Servs., L.P., No. H-06-1856, 2006 WL 2585047, at *4 n.16 (S.D. Tex. Sept. 7, 2006) (rejecting defendant's argument that conditional certification was inappropriate because the plaintiffs were supervisors and exempt under the executive exemption because argument went "to the merits of whether the employees are exempt . . . and is not a persuasive basis to deny notice.").
• Heeg v. Adams Harris, Inc., 907 F. Supp. 2d 856 (S.D. Tex. 2012) (court rejects defendant's argument that the inclusion of independent contractors in a class defeats certification because determining who is an independent contractor requires an inherently individualized analysis; court notes that courts in the Southern District of Texas have typically declined to apply any type of individualized analysis at the conditional certification stage).
• In re Wells Fargo Wage & Hour Emp. Prac. Litig., No. H-11-2266, 2012 WL 3308880, at *28 (S.D. Tex. Aug. 10, 2012) (noting that courts within the Southern District of Texas have determined that exemptions are merit-based and not relevant at the conditional certification/notice stage).

A new case from the Southern District of Texas sets out in detail the application of established case law; the case also has an excellent section on the language of a notice sent to employees and holds that notice need not include language that plaintiff opt ins may be liable for costs.

• Diaz v. Applied Machinery Corp., Nos. H-15-1282, H-15-2674, 2016 WL 3568087 (S.D. Tex. June 24, 2016).

2-65:1.1b Interest By Others as Prerequisite to Conditional Certification

One argument that defendants should consider is whether the plaintiff must not only show that there is a reasonable basis for crediting the plaintiff's assertion that other aggrieved individuals exist and that those individuals are similarly situated to the plaintiff but also that those individuals want to opt into the lawsuit. Two cases in the Southern District of Texas impose this layer of analysis upon plaintiffs seeking conditional certification.

• Cantu v. Vitol, Inc., No. H-09-0576, 2009 WL 5195918 (S.D. Tex. Dec. 21, 2009).
• Tolentino v. C&J Spec-Rent Servs. Inc., 716 F. Supp. 2d 642, 646 (S.D. Tex. 2010).

But, for the most part, courts in the Southern District do not impose this third layer.

• Luvianos v. Gratis Cellular, Inc., No. H-12-1067, 2012 WL 6743559 (S.D. Tex. Dec. 28, 2012) (rejecting imposition of third layer, noting that "requiring evidence of purported class members who are willing to join a class action before an appropriate class is even determined, is dissonant with the Supreme Court's directive that FLSA be liberally construed to effect its purpose.").
• Guillory v. PF&B Mgmt., L.P., No. H-11-4377, 2012 WL 5207590 (S.D. Tex. Sept 14, 2012) (collecting cases).
• Heeg v. Adams Harris, Inc., 907 F. Supp. 2d 856 (S.D. Tex. 2012) (rejecting defendant's argument that plaintiffs did not present evidence that other similarly situated, aggrieved individuals exist who want to opt into a certified collective action; court notes that this burden on plaintiffs is minimal and that an affidavit of one other employee who alleged he was not paid overtime and stated that he was interested in joining the lawsuit is sufficient, especially where defendant acknowledged that there were at least eighteen employees who might be eligible to be included in the class under the plaintiffs' proposed class designation).
• Davis v. Mostyn Law Firm, P.C., No. 4:11-cv-02874, 2012 WL 163941 (S.D. Tex. Jan. 19, 2012) (court holds that the mere existence of other similarly situated persons is no guarantee that those persons will actually seek to join the suit; however, court holds that plaintiffs satisfied this

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