Encinas v. J.J. Drywall Corporation , 265 F.R.D. 3 ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
FELIX ENCINAS, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 08-1156 (RWR)
)
J.J. DRYWALL CORPORATION, )
et al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION AND ORDER
Plaintiffs Gabriel and Felix Encinas and Silvano Carbajal
bring claims on their own behalf and on behalf of all others
similarly situated against defendants J.J. Drywall Corporation
and Jose Luis Jimenez under the Fair Labor Standards Act
(“FLSA”), codified at 29 U.S.C. § 201 et seq., and various
District of Columbia and Maryland statutes to recover unpaid
overtime and other wages. The plaintiffs have filed unopposed
motions to conditionally certify the collective class challenging
the denial of overtime compensation under the FLSA and to certify
sub-classes of plaintiffs asserting claims under District of
Columbia and Maryland Law under Rule 23 of the Federal Rules of
Civil Procedure. Because the plaintiffs have made the modest
factual showing necessary for conditional certification under the
FLSA and satisfied the requirements of Rule 23 to certify the
state sub-classes, their unopposed motions will be granted.
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BACKGROUND
Defendant J.J. Drywall, owned by pro se defendant Jose Luis
Jimenez, installs drywall in commercial construction sites in
Washington, D.C. and Maryland. (Compl. ¶¶ 7, 9, 12.) J.J.
Drywall employed plaintiffs Gabriel and Felix Encinas and Silvano
Carbajal as drywall mechanics. (Id. ¶¶ 4-6.) Plaintiffs allege
in their complaint that Gabriel and Felix Encinas worked more
than forty hours in a workweek but did not receive time and one-
half overtime compensation for those hours. (Id. ¶ 19.)
Plaintiffs further allege that J.J. Drywall has a policy of not
paying its drywall workers for overtime hours worked and of
deducting and retaining ten percent of its drywall employees
gross wages without “legal authorization or justification for the
deductions.” (Id. ¶¶ 20-21.)
Plaintiffs move to conditionally certify a collective action
under the FLSA for all similarly situated employees who did not
receive time and one-half compensation for overtime, and to
certify Washington, D.C. and Maryland sub-classes under Federal
Rule of Civil Procedure 23 for all similarly situated employees
bringing claims of unpaid wages under D.C. and Maryland law.
Plaintiffs have also moved for approval of a proposed notice for
collective action class members and for members of each sub-
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class, and for discovery of the names, last known addresses, and
telephone numbers of potential class members.1
DISCUSSION
I. FLSA CONDITIONAL CERTIFICATION
The FLSA provides that “no employer shall employ any of his
employees . . . for a workweek longer than forty hours unless
such employee receives compensation for his employment in excess
of the hours above specified at a rate not less than one and one-
half times the regular rate at which he is employed.” 29 U.S.C.
§ 207(a)(1). If an employer violates this section, “any one or
more employees for and in behalf of himself or themselves and
other employees similarly situated” may bring a cause of action.
29 U.S.C. § 216(b). Such a collective action is not subject to
the class certification standards –– numerosity, commonality,
typicality, and adequacy of representation –– under Rule 23.
Castillo v. P & R Enterprises, Inc., 517 F. Supp. 2d 440, 444
(D.D.C. 2007). “Instead, a collective action has only two
threshold requirements: the plaintiff[s] must show that [they
are] similarly situated to the other members of the proposed
class, and those other members must ‘opt in’ to the proposed
class.” Hunter v. Sprint Corp., 346 F. Supp. 2d 113, 117 (D.D.C.
2004).
1
Jimenez does not oppose either motion. J.J. Drywall has
not entered an appearance through counsel, as a corporation must
in order to participate in the suit.
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While the D.C. Circuit has yet to articulate the procedure
for certifying a class under the FLSA, courts in this district
typically engage in a two-step process. First, “plaintiffs must
make a ‘modest factual showing sufficient to demonstrate that
they and potential plaintiffs together were victims of a common
policy or plan that violated the law.’” Castillo, 517 F. Supp.
2d at 445 (quoting Chase v. AIMCO Props., 374 F. Supp. 2d 196,
200 (D.D.C. 2005). Such a showing, as an initial matter,
satisfies the FLSA requirement that putative class members be
similarly situated to the plaintiffs, id., and is “ordinarily
based mostly on the parties’ pleadings and affidavits.” Chase,
374 F. Supp. 2d at 200; see also McKinney v. United Stor-All
Ctrs., Inc., 585 F. Supp. 2d 6, 8 (D.D.C. 2008) (noting that
“[t]his showing may be made through pleadings and affidavits that
demonstrate that ‘the putative class members were together the
victims of a single decision, policy or plan’ that violated the
law” (quoting Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214 n.8
(5th Cir. 1995))). Second, defendants may move at the close of
discovery to decertify the conditional class if the record
establishes that the plaintiffs are not, in fact, similarly
situated. Castillo, 517 F. Supp. 2d at 445.
Because conditional certification is not binding and is
merely meant to facilitate providing notice to potential class
members so that they may choose to opt in to the collective
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action, “[t]he court employs a lenient standard” in making such a
determination. McKinney, 585 F. Supp. 2d at 8. While the FLSA
does not define “similarly situated[,]” id., courts have
considered three factors that bear on the commonality of the
claims: “(1) whether [putative class members] all worked in the
same corporate department, division and location; (2) whether
they all advanced similar claims; and (3) whether they sought
substantially the same form of relief.” Hunter, 346 F. Supp. 2d
at 119 (quoting Lawrence v. City of Phila., No. 03-CV-4009, 2004
WL 945139, at *1 (E.D. Pa. Apr. 29, 2004)). In Castillo, the
court conditionally certified a class even though some putative
class members did not have identical job titles or duties and
worked in different locations. It found these distinctions
immaterial in light of the substantive similarity of the putative
class members’ job responsibilities, their shared classification
as non-exempt for purposes of the FLSA, and the allegation that
the employer subjected all of its workers to a uniform payroll
policy. 517 F. Supp. 2d at 446-48.
Here, the putative class members are similarly situated to
the plaintiffs. As in Castillo, the plaintiffs allege that “the
duties and responsibilities of the jobs held by members of the
proposed Collective Class were the same as or substantially
similar to the duties and responsibilities of the jobs held by
Plaintiffs Gabriel Encinas and Felix Encinas.” (Compl. ¶ 69.)
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The named plaintiffs worked for J.J. Drywall installing drywall
and insulation at various construction sites (see Pls.’ Mem. of
P. & A. in Supp. of Mot. for Conditional Certification of
Collective Class (“Pls.’ § 216(b) Mem.”), Gabriel Encinas Decl.
¶¶ 11, 16; Compl. ¶ 14), and the collective class members worked
as “drywall finisher[s], drywall mechanics[s], carpenter[s],
and/or mechanic[s], who perform work similar to the work
performed by employees in those classifications[.]” (Compl.
¶ 68.) J.J. Drywall classified the named plaintiffs and all
putative class members as exempt employees under the FLSA. (Id.
¶ 17.) Additionally, the plaintiffs have alleged that J.J.
Drywall has “a company policy of not paying its employees for
overtime hours worked” (id. ¶ 20), and the plaintiffs’ and
putative class members’ FLSA claims stem from this policy. These
similarities are sufficient to overcome any differences in job
titles or work locations between the plaintiffs and putative
class members, and the class will be conditionally certified.
“The scope of a collective action for overtime pay is
limited, however, in that putative class members must
affirmatively opt in to the action in order to become part of the
lawsuit.” Cryer v. Intersolutions, Inc., Civil Action No. 06-
2032 (EGS), 2007 WL 1053214, at *1 (D.D.C. Apr. 7, 2007). To opt
in to the class, a plaintiff must give “his consent in
writing[,]” and such consent must be filed in the court in which
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the suit is brought. 29 U.S.C. § 216(b). A court may facilitate
notice of a collective action, informing putative members of the
class about the suit and the requirement to opt in to the
litigation, so long as it “take[s] care to avoid even the
appearance of judicial endorsement of the merits of the action.”
Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 174 (1989).
Ninety days is a reasonable period for putative class members to
respond to the notice. Cryer, 2007 WL 1053214, at *3. Here,
plaintiffs have filed a proposed notice, to be posted “at all of
J.J. Drywall Corporation’s job sites, in the same areas in which
it is required to post government-required notices.” (Pls.’
§ 216(b) Mem. at 13.) The proposed notice is limited to the FLSA
overtime claim and makes abundantly clear that the court has not
yet taken a position on the merits of the claim. (See id., Ex. A
at 2, 4.) Thus, plaintiffs’ proposed notice will be approved to
be posted for a period of ninety days from the date of this
Order.
Plaintiffs also move for an order directing defendants to
supply the names, last known addresses, and telephone numbers of
all employees in the putative class. (Id. at 13.) A district
court may order a defendant to produce the names and last known
addresses of putative FLSA collective action class members in
order to facilitate providing these individuals with notice. See
Hoffmann-La Roche, 493 U.S. at 170 (finding that “[t]he District
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Court was correct to permit discovery of the names and addresses
of the discharged employees” to facilitate notice of collective
action under 29 U.S.C. § 216(b)); Hunter, 346 F. Supp. 2d at 121(ordering production of names and addresses). However, some
courts have hesitated to order defendants to produce the
telephone numbers of putative class members, reasoning that such
information is “inherently private[.]” See, e.g., Fengler v.
Crouse Health Found., Inc., 595 F. Supp. 2d 189, 198 (N.D.N.Y.
2009); Houston v. URS Corp., 591 F. Supp. 2d 827, 836 (E.D. Va.
2008) (denying plaintiffs’ request for phone numbers). Because
plaintiffs have not specifically justified their need for access
to putative class members’ phone numbers, the defendants will be
ordered to produce only the names and last known addresses of
putative class members.
II. RULE 23 CERTIFICATION
The plaintiffs also move to certify a Washington, D.C. sub-
class and a Maryland sub-class under Rule 23. These sub-classes
would include all hourly-paid or piece-work drywall finishers,
drywall mechanics, carpenters, or mechanics who were not paid for
all hours worked or had ten percent deducted from their gross
wages, and who were employed by J.J. Drywall in Washington, D.C.
or Maryland between July 1, 2005 and the date of final
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disposition of this action.2 (Pls.’ Mem. of P. & A. in Supp. of
Pls.’ Mot. for Order Certifying Classes and Appointing Class
Counsel Under Rule 23 (“Pls.’ Rule 23 Mem.”) at 8-9.) A party
moving to certify a class under Rule 23 bears the burden of
establishing that the suit satisfies the requirements of the
rule.3 Lindsay v. Gov’t Employees Ins. Co., 251 F.R.D. 51, 54
(D.D.C. 2008) (citing Amchem Prods., Inc. v. Windsor, 521 U.S.
591, 614 (1997)). First, under Rule 23(a), the moving party must
show that
(1) the class is so numerous that joinder of all
members is impracticable; (2) there are questions of
law or fact common to the class; (3) the claims or
defenses of the representative parties are typical of
the claims or defenses of the class; and (4) the
representative parties will fairly and adequately
protect the interests of the class.
Fed. R. Civ. P. 23(a). “Failure to adequately demonstrate any of
the four [Rule 23(a) requirements] is fatal to class
certification.” Garcia v. Johanns, 444 F.3d 625, 631 (D.C. Cir.
2006). Second, the party must show that the class action falls
2
Although the putative class members allege claims under
state law, plaintiffs’ FLSA claims arise under federal law, and
there is supplemental jurisdiction over the state law claims
under 28 U.S.C. § 1367(a).
3
“While the Local Civil Rules generally permit the Court to
treat unopposed motions as conceded, the Federal Rules of Civil
Procedure contemplate that the Court must find that the
requirements of Rule 23 are satisfied before certifying a class.”
Barnes v. District of Columbia, 242 F.R.D. 113, 120 (D.D.C. 2007)
(internal citation omitted). The merits of the certification
motion, therefore, will be evaluated even though defendant
Jimenez does not oppose the motion.
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within one of the three types of class actions identified in Rule
23(b). Lindsay, 251 F.R.D. at 54.
A. Rule 23(a) requirements
1. Numerosity
“Rule 23(a)(1) permits maintenance of a class action if ‘the
class is so numerous that joinder of all members is
impracticable.’” Taylor v. D.C. Water & Sewer Auth., 241 F.R.D.
33, 37 (D.D.C. 2007) (quoting Fed. R. Civ. P. 23(a)(1)). While a
class of at least forty members is sufficiently numerous to
satisfy this requirement presumptively, “[t]here is no specific
threshold that must be surpassed[.]” Id. Instead, a court must
examine the particular facts before it, Gen. Tel. Co. of Nw.,
Inc. v. EEOC, 446 U.S. 318, 330 (1980), including “geographic
dispersion of class members[.]” Robidoux v. Celani, 987 F.2d
931, 936 (2d Cir. 1993).
Plaintiffs claim that there are at least thirty-five members
in the Washington, D.C. sub-class and at least thirty members in
the Maryland sub-class. (Pls.’ Rule 23 Mem. at 9, 11.) The
declaration of plaintiff Gabriel Encinas states that there were
at least twenty similarly situated employees at one Washington
job site at which he worked and fifteen similarly situated
employees at another Washington job site at which he worked.
(Id., Gabriel Encinas Decl. ¶¶ 13, 18.) However, the declaration
of Miguel Linares confirms only that there were fifteen other
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similarly situated employees at one Maryland job site. (Id.,
Miguel Linares Decl. ¶ 16.) Even though both sub-classes fall
short of forty confirmed members, the plaintiffs still have
satisfied their required showing of numerosity. First, because
plaintiffs allege a company policy of deducting ten percent of
gross wages from its workers at all job sites, the number of
class members is potentially much greater than forty for each
sub-class, since the declarations cover only three of J.J.
Drywall’s many work sites. Second, because “the recent downturn
in the construction sector has made construction-related work,
including drywall installation, scarce[,] . . . other employees
have traveled hundreds of miles in search of work.” (Id.,
Gabriel Encinas Decl. ¶ 20.) Such geographic dispersion of
potential plaintiffs also makes joinder impracticable because it
will be difficult for individuals who no longer reside in or
around D.C. to take on the responsibilities of prosecuting their
cases in this court.
2. Commonality
“Commonality requires that the plaintiff raise claims which
rest on ‘questions of law or fact common to the class.’” Taylor,
241 F.R.D. at 37 (quoting Fed. R. Civ. P. 23(a)(2)). However,
“factual variations among the class members will not defeat the
commonality requirement, so long as a single aspect or feature of
the claim is common to all proposed class members.” Bynum v.
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District of Columbia (“Bynum II”), 217 F.R.D. 43, 46 (D.D.C.
2003). Here, the challenged activity is the same for the
plaintiffs and all members of the two sub-classes: J.J. Drywall’s
alleged policy of withholding ten percent of its drywall
employees’ gross wages. This satisfies the commonality
requirement.
3. Typicality
“Typicality requires that the claims of the representative
be typical of those of the class.” Taylor, 241 F.R.D. at 44
(citing Fed. R. Civ. P. 23(a)(3)). This inquiry overlaps with
the commonality inquiry, as each seeks to determine the
practicality of proceeding with a class action and the extent to
which the plaintiffs will protect the interests of absent class
members. Id. A plaintiff’s claims can be typical of those of
the class even if there is some factual variation between them.
Bynum v. District of Columbia (“Bynum I”), 214 F.R.D. 27, 34
(D.D.C. 2003). At bottom, a class representative’s claims are
typical of those of the class if “the named plaintiffs’ injuries
arise from the same course of conduct that gives rise to the
other class members’ claims.” Id. at 35. The claims of
plaintiffs Gabriel and Felix Encinas are typical of the claims of
members of the D.C. sub-class, and the claims of plaintiff
Silvano Carbajal are typical of the claims of the Maryland sub-
class because they all arise from the same alleged course of
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conduct: J.J. Drywall’s policy of retaining ten percent of its
drywall employees’ gross wages.
4. Adequacy of representation
“The fourth and final requirement of Rule 23(a) requires
that the court determine whether the proposed representatives can
adequately represent the interests of the class.” Taylor, 241
F.R.D. at 45. This requirement is satisfied upon a showing that
1) there is no conflict of interest between the proposed class
representative and other members of the class and 2) the proposed
class representative “will vigorously prosecute the interests of
the class through qualified counsel.” Lindsay, 251 F.R.D. at 55.
When determining whether potential class counsel is qualified, a
court considers
(i) the work counsel has done in identifying or
investigating potential claims in the action; (ii)
counsel’s experience in handling class actions, other
complex litigation, and the types of claims asserted in
the action; (iii) counsel’s knowledge of the applicable
law; and (iv) the resources that counsel will commit to
representing the class[.]”
Fed. R. Civ. P. 23(g)(1)(A).
The plaintiffs have shown that they will adequately
represent the class. Nothing in the record suggests that there
is any conflict between the class representatives and members of
the sub-classes. Plaintiffs also have retained qualified class
counsel. Counsel have already committed substantial time and
resources to identifying and investigating potential claims in
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the action. (See id., Brian Quinn Decl. ¶ 6, Charles Gilligan
Decl. ¶ 6.) The firms have experience in handling class actions
and labor litigation, providing them expertise in the applicable
area of law. (Id., Brian Quinn Decl. ¶¶ 4-5, Charles Gilligan
Decl. ¶¶ 4-5.) Finally, counsel have sufficient resources to
devote to representing the class. (Id., Brian Quinn Decl. ¶¶ 6-
8, Charles Gilligan Decl. ¶¶ 6-8.) The plaintiffs therefore have
satisfied all requirements under Rule 23(a).
B. Rule 23(b)
The plaintiffs assert that the class action may be
maintained under either Rule 23(b)(1)(A) or Rule 23(b)(3).
(Pls.’ Rule 23 Mem. at 16-17.) Rule 23(b)(1)(A) provides for
certifying a class when “prosecuting separate actions by . . .
individual class members would create a risk of . . .
inconsistent or varying adjudications with respect to individual
class members that would establish incompatible standards of
conduct for the party opposing the class[.]” Plaintiffs argue
that individual lawsuits would create the risk that defendants
would have to comply with inconsistent judgments. (Pls.’ Rule 23
Mem. at 17.) However, the complaint seeks monetary damages as
the primary form of relief, and a judgment that defendants are
liable to a particular plaintiff for damages is not necessarily
inconsistent with a judgment that the defendant is not liable to
another plaintiff. See Harrington v. City of Albuquerque, 222
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F.R.D. 505, 516 (D.N.M. 2004) (“Certification pursuant to Rule
23(b)(1)(A) is generally not appropriate in cases in which the
primary relief sought is monetary damages.”); Garcia v. Sun Pac.
Farming Coop., No. CV F 06-0871 LJO TAG, 2008 WL 2073979, at *5
(E.D. Cal. May 14, 2008) (noting that “certification of wage and
hour cases are not appropriate under Rule 23(b)(1)”). Certifying
the class action under Rule 23(b)(1)(A), then, may not be
appropriate.
A court may certify a class under Rule 23(b)(3) if “the
court finds that the questions of law or fact common to class
members predominate over any questions affecting only individual
members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.”
Fed. R. Civ. P. 23(b)(3). Relevant to this determination are 1)
the class members’ interests in individually controlling the
prosecution of their actions, 2) the extent and nature of any
litigation concerning the controversy already begun by class
members, 3) the desirability or undesirability of concentrating
litigation of the claims in a single forum, and 4) the likely
difficulties in managing the class action. Id.
1. Predominance
Whether “common factual and legal issues predominate over
any such issues that affect only individual class members[] is
related to the commonality requirement of Rule 23(a).” Bynum II,
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217 F.R.D. at 49. If the questions of law and fact identified as
common to the named plaintiffs and members of the class
predominate over any non-common issues, the requirement is
satisfied. Id. Here, the common issues of whether J.J. Drywall
maintained a policy of retaining ten percent of its drywall
workers’ gross wages and whether that practice violates D.C. or
Maryland law predominate over any issues that may affect
individual class members. All members of each sub-class appear
to have identical legal claims, and the only apparent non-common
factual issues involve determining at which job sites and for how
many hours each member of the class worked.
2. Superiority
“Rule 23(b)(3) favors class actions where common questions
of law or fact permit the court to ‘consolidate otherwise
identical actions into a single efficient unit.’” Bynum I, 214
F.R.D. at 40 (quoting Wells v. Allstate Ins. Co., 210 F.R.D. 1,
12 (D.D.C. 2002)). Several of the Rule 23(b)(3) factors weigh in
favor of consolidating the class members’ claims into a single
action. First, construction-related work has become more scarce
during the current economic downturn, and former J.J. Drywall
employees have dispersed geographically in search of other work.
(Pls.’ Rule 23 Mem., Gabriel Encinas Decl. ¶ 20.) Accordingly,
many class members likely have no interest in prosecuting their
actions individually, which would require sacrificing time that
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otherwise could be spent working or pursuing employment
opportunities. Second, the plaintiffs assert on information and
belief that “there is no current litigation concerning the
instant controversy by class members,” in part because “many are
non-English speakers, and are unfamiliar with the U.S. court
system and may be disinclined to individually engage in such a
system with which they are unfamiliar.” (Pls.’ Rule 23 Mem. at
19.) Finally, the common issues of law and fact predominate over
individual issues to such a great extent that there does not
appear to be any likely difficulty in managing the class action.
Thus, the sub-classes will be certified under Rule 23(b)(3).4
C. Notice
Once a court certifies a Rule 23(b)(3) class, “the court
must direct to class members the best notice that is practicable
under the circumstances, including individual notice to all
members who can be identified through reasonable effort.” Fed.
R. Civ. P. 23(c)(2)(B). Such notice
4
There is no conflict between conditionally certifying the
FLSA claims as a collective action under 29 U.S.C. § 216(b) and
certifying the state law claims as a class action under Rule 23,
even though class members must opt in to the former action and
may opt out of the latter. See Lindsay, 251 F.R.D. at 57
(surveying cases where plaintiffs sought to certify both FLSA and
state law claims and concluding that permitting state law claims
“to proceed as Rule 23(b)(3) class actions, along with FLSA
collective actions, is a superior method for adjudicating
plaintiffs’ claims” in situations where “plaintiffs’ state law
claims are based on the same facts as their federal law claims”
(internal quotation marks omitted)).
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must clearly and concisely state in plain, easily
understood language: (i) the nature of the action; (ii)
the definition of the class certified; (iii) the class
claims, issues, or defenses; (iv) that a class member
may enter an appearance through an attorney if the
member so desires; (v) that the court will exclude from
the class any member who requests exclusion; (vi) the
time and manner for requesting exclusion; and (vii) the
binding effect of a class judgment on members under
Rule 23(c)(3).
Id. The plaintiffs have submitted a proposed notice for each
sub-class that satisfies all requirements of Rule 23(c)(2) (see
Pls.’ Rule 23 Mem., Ex. 1, Ex. 2), and the notices will be
approved. To ensure that class members whose contact information
has changed also receive notice, the defendants will be ordered
to post the notice for each sub-class at J.J. Drywall’s work
places and job sites as well.
The plaintiffs also move for defendants to produce the
names, last known mailing addresses, and telephone numbers of all
potential members of both sub-classes to facilitate providing
them with notice. (Pls.’ Rule 23 Mem. at 20.) A court may order
a defendant to cooperate “in identifying the class members to
whom notice must be sent” under Rule 23(d). Oppenheimer Fund,
Inc. v. Sanders, 437 U.S. 340, 355 (1978). Just as with the
collective action, however, plaintiffs have not justified a
special need for disclosure of class members’ telephone numbers
to facilitate providing them with notice of the suit.
Accordingly, defendants will be ordered to produce only the names
and last known addresses of class members.
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The plaintiffs request that the defendants produce
information for all “non-exempt employees in their employ since
July 1, 2005.” (Pls.’ Rule 23 Mem. at 20.) However, the
plaintiffs’ complaint alleges that J.J. Drywall “classified or
treated” the plaintiffs and “all similarly situated employees as
exempt employees under FLSA and/or the D.C. Minimum Wage Revision
Act.” (Compl. ¶ 17 (internal citations omitted) (emphasis
added).) To avoid any confusion, defendants will be ordered to
produce the same names and addresses under Rule 23(d) as they
will produce under 29 U.S.C. § 216(b), namely all workers
employed as drywall finishers, drywall mechanics, carpenters,
mechanics, or in similar jobs, performing drywall installation
and finishing work at construction job sites in Washington, D.C.
or Maryland at any time since July 1, 2005.
CONCLUSION AND ORDER
The plaintiffs have made the modest factual showing
necessary for conditional certification under the FLSA and
satisfied the requirements of Rule 23 to certify the state sub-
classes. Accordingly, it is hereby
ORDERED that plaintiffs’ motion [20] for conditional
certification of a collective class, approval of notice to
potential plaintiff employees, and court-ordered discovery and
posting of notice be, and hereby is, GRANTED. The collective
class is conditionally certified as all individuals who are or
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have been employed by J.J. Drywall Corporation as hourly-paid or
piece-work employees and employed as drywall finishers, drywall
mechanics, carpenters, or mechanics, who perform work similar to
the work performed by employees in those classifications, and who
worked more than forty hours during any given work week between
July 1, 2005 and the date of final disposition of this action.
The proposed notice to the collective class is approved.
Defendants shall provide to plaintiffs’ counsel the names and
last known addresses of all workers employed as drywall
finishers, drywall mechanics, carpenters, or mechanics, or in
similar jobs, performing drywall installation and finishing work
at construction job sites at any time since July 1, 2005. For a
period of ninety days from the date of this Order, defendants
shall post the approved notice at all of their workplaces and job
sites in such a way as to reasonably assure that prospective
class members may see it in the ordinary course of performing
their duties. It is further
ORDERED that plaintiffs’ motion [19] to certify classes and
appoint class counsel under Rule 23 of the Federal Rules of Civil
procedure and to approve proposed notices be, and hereby is,
GRANTED. The Washington, D.C. sub-class is certified as all
individuals who are or have been employed by J.J. Drywall
Corporation in Washington, D.C. as hourly-paid or piece-work
employees and employed as drywall finishers, drywall mechanics,
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carpenters, or mechanics, who perform work similar to the work
performed by employees in those classifications, and who were not
paid for all hours worked or had ten percent deducted from their
gross wages between July 1, 2005 and the date of final
disposition of this action. The Maryland sub-class is certified
as all individuals who are or have been employed by J.J. Drywall
Corporation in Maryland as hourly-paid or piece-work employees
and employed as drywall finishers, drywall mechanics, carpenters,
or mechanics, who perform work similar to the work performed by
employees in those classifications, and who were not paid for all
hours worked or had ten percent deducted from their gross wages
between July 1, 2005 and the date of final disposition of this
action. DeCarlo, Connor & Shanely, P.C., and O’Donoghue &
O’Donoghue are appointed as class counsel. Plaintiffs’ proposed
notices to Washington, D.C. and Maryland sub-class members are
approved and class members shall have until June 21, 2010 to opt
out of their respective sub-classes. Defendants shall provide to
plaintiffs’ counsel the names and last known addresses of all
workers employed as drywall finishers, drywall mechanics,
carpenters, or mechanics, or in similar jobs, performing drywall
installation and finishing work at construction job sites in
Washington, D.C. and Maryland at any time since July 1, 2005.
For a period of ninety days from the date of this Order,
defendants shall post the approved notices at all of their
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workplaces and job sites in such a way as to reasonably assure
that prospective class members may see it in the ordinary course
of performing their duties.
SIGNED this 8th day of March, 2010.
__________/s/_______________
RICHARD W. ROBERTS
United States District Judge