On March 8, 2013, the United States District Court for the Eastern District of Missouri, in the case of Burkeen, et al. v. New Madrid County Ambulance District, issued an Order conditionally certifying the case as a collective action pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Section 216(b). In the lawsuit, paramedics and emergency medical technicians ("EMTs") represented by Riggan Law Firm, LLC --a St. Louis employment law firm--have sued the Ambulance District for not paying them one-and-one-half times their regular hourly rate for all hours over 40 in each workweek. In addition, the lead/representative plaintiff in the lawsuit alleges that the Ambulance District retaliated against him when he complained about the alleged FLSA violations by subjecting him to disciplinary action and suspending his employment.
Under the FLSA, an employee may bring a lawsuit on his/her own behalf as well as for those "similarly situated." District courts in the Eighth Circuit have conducted a two-step analysis to determine whether employees are similarly situated. The first step is the "notice stage," in which plaintiffs seek early conditional class certification and notify potential class members of the case. The second step is the "merits stage," which takes place after discovery and during which defendants may move to decertify the class. The Court's Order of March 8, 2013 comes during the first stage of the case.
The Court noted that Plaintiffs' burden at the "notice stage" is not onerous: conditional certification "requires nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan." While the Ambulance District conceded that Plaintiffs had met this burden, the Defendant took issue with: (1) the applicable statute of limitations; (2) the Plaintiffs' motion for disclosure of information relating to putative class members; (3) Plaintiffs' motion for facilitation of class notice; and (4) the content of the class notice itself.
On the length of the statute of limitations, Plaintiffs argued that a three-year period was appropriate, given that they had alleged a willful violation of the FLSA. The Ambulance District called for a two-year period, arguing that despite numerous allegations regarding willfulness in Plaintiffs' complaint, Plaintiffs' affidavits submitted with their motion for conditional class certification do not support the allegations of willful conduct. Plaintiffs' declarations state that they heard the Defendant's managers and supervisors state "that the District does not pay overtime rates (over and above the regular hourly rates) to paramedics and EMTs for time worked over 40 hours in a workweek, and that this pay practice was the District's policy." The Court stated that although the Defendant is correct that, standing alone, Plaintiffs' declarations do not support that Defendant knew its policy violated the FLSA, the allegations in the Complaint make clear that the lead/representative Plaintiff complained about the policy, and, in fact, he alleges that he was retaliated against for his complaints. Thus, the Court conditionally certified the class with a three-year statute of limitations.
Plaintiffs requested that Defendant be ordered to supply Plaintiffs' counsel with putative class members' names, addresses, phone numbers, e-mail addresses, dates of employment, and location of employment in a readable electronic format. Plaintiffs seek the information so that they may notify potential class members of the litigation and offer them an opportunity to opt-in. Defendant objected on the grounds that the request is overly broad, duplicative, and not necessary. Defendant proposed that it provide only names, dates of employment, and last known addresses. Ultimately, the Court rejected Defendant's arguments and held that information such as e-mail addresses and phone numbers, in addition to physical addresses, may be helpful if the Defendant's employees have moved. The Court also ordered that the Defendant will be required to post the class notice in its breakrooms, but that the Defendant is not required to disseminate the class notice with employee paychecks.
Finally, the Court rejected all of the Defendant's objections to Plaintiffs' proposed class notice. Defendant proposed language to advise putative class members that they are free to select their own counsel, and that the notice should not require the opt-in plaintiffs to accept the current Plaintiffs' counsel. Plaintiffs argued that including the information proposed by Defendant would be confusing and would invite unncessary complexity. The Court sided with the Plaintiffs. The Court stated that if a putative class member intends to join the existing lawsuit and signs a consent form, then he or she agrees to become a part of the class and be represented by class counsel. Otherwise, the individual can choose to pursue a separate action against the Defendant or simply not participate at all. The Court held that the text of Plaintiffs' proposed notice already makes that point clear, and that the Defendant's objection is overruled. Also, the Court rejected the Defendant's suggestion that Defendant's attorneys' contact information be included in the class notice, because the Court found that such information is likely to lead to confusion.
Ultimately, the Court conditionally certified the case with a three-year statute of limitations. The Court ordered the Ambulance District to provide Plaintiffs with putative class members' names, addresses, phone numbers, e-mail addresses, and dates of employment in a readable electronic format within 21 days. The Court stated that Plaintiffs may disseminate the proposed class notice to class members by means of mailing it to their last-known mailing address and by e-mail, and the Defendant shall also conspicuously post the notice in any and all break rooms during the opt-in period.