in the united states district court for the...

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CHRISTOPHER MINOR, et al., for

themselves and others similarly situated,

Plaintiffs,

vs.

TWIN RIVERS CONSTRUCTION INC.,

Defendant.

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Civil Action No. 2:16-cv-1002

JUDGE SARGUS

PLAINTIFFS’ COMBINED MOTION FOR CONDITIONAL COLLECTIVE

ACTION CERTIFICATION AND CLASS ACTION CERTIFICATION

Pursuant to 29 U.S.C. § 216(b), Plaintiffs Christopher Minor and Donald Skaggs, by and

through counsel, hereby move this Court for an order: (1) Conditionally certifying this action as

a collective action under the Fair Labor Standards Act (“FLSA”); (2) Certifying this action as a

class action under Rule 23 of the Federal Rules of Civil Procedure; and (3) Designating

Plaintiff’s selection of counsel, Mansell Law, LLC, as Class Counsel pursuant to Rule 23(g) of

the Federal Rules of Civil Procedure, and authorizing Plaintiffs to send notices of this lawsuit to

the putative class members, informing them of their rights and providing them with an

opportunity to join the action by way of the Proposed Notice of Collective Action and Class

Action, attached hereto as Exhibit A. Such relief is appropriate for the reasons set forth in the

attached Memorandum of Law in Support.

Case: 2:16-cv-01002-EAS-EPD Doc #: 3 Filed: 11/07/16 Page: 1 of 39 PAGEID #: 21

Respectfully submitted,

/s/Greg Mansell

Greg R. Mansell (0085197)

([email protected])

Carrie J. Dyer (0090539)

([email protected])

Mansell Law, LLC

1457 S. High St.

Columbus, OH 43207

Ph: (614) 610-4134/Fax: (513) 826-9311

Counsel for Plaintiffs


i

TABLE OF CONTENTS

I. INTRODUCTION ..................................................................................................................... 1

II. RELEVANT FACTUAL BACKGROUND .......................................................................... 2

A. Defendant's Business Operations.....................................................................................2

B. Laborers' & Laborer Foremen's Employment & Work Schedules..............................3

C. Defendant's Pay Practices.................................................................................................6

D. Plaintiff Minor's Complaint Regarding Defendant's Pay Practices.............................8

III. FLSA COLLECTIVE ACTION CLAIMS .......................................................................... 9

A. Legal Standard for Conditional Certification of FLSA Collective Action...................9

29 U.S.C. §207(a)(1); 29 U.S.C. § 216(b); Stout v. Remetronix, Inc., 2013 U.S. Dist.

LEXIS 112563, *6 (S.D. Ohio Aug. 9, 2013; Cahill v. City of New Brunswick, 99 F. Supp.

2d 464, 479 (D. N.J. 2000); Harrison v. McDonald’s Corp., 411 F.Supp.2d 862, 864

(S.D. Ohio 2005); O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 582–83 (6th Cir.

2009); Shipes v. Amurcon Corp., 2012 U.S. Dist. LEXIS 39794 at *9 (E.D. Mich. 2012);

Lacy v. Reddy Elec. Co., 2011 U.S. Dist. LEXIS 142050, *5 (S.D. Ohio 2011); Comer v.

Wal-Mart Stores, Inc., 454 F.3d 544, 546-47 (6th Cir. 2006); Wlotkowski v. Michigan

Bell Tel. Co., 267 F.R.D. 213, 217 (E.D. Mich. 2010).

1. The Notice Stage..... ............................................................................................. 10

Lacy, 2011 U.S. Dist. LEXIS 142050 at *5; Comer, 454 F.3d at 546); Pritchard v.

Dent Wizard Int’l, 210 F.R.D. 591, 595 (S.D. Ohio 2002); Lewis, et al. v.

Huntington Nat. Bank, 789 F. Supp. 2d 863, 867 (S.D. Ohio 2011); Castillo v.

Morales, Inc., 2014 U.S. Dist. LEXIS 123409, *6 (S.D. Ohio Sept. 4, 2014);

Cornell v. World Wide Bus. Servs. Corp., 2014 U.S. Dist. LEXIS 119586, *7 (S.D.

Ohio Aug. 27, 2014); Heaps v. Safelite Solutions, LLC., 2011 U.S. Dist. LEXIS

40089, at *4 (S.D. Ohio Apr. 5, 2011); Douglas v. GE Energy Reuter Stokes,

2007 U.S. Dist. LEXIS 32449, *25 (N.D. Ohio Apr. 30, 2007); Sisson v.

OhioHealth Corp., 2013 U.S. Dist. LEXIS 162464, *21-22 (S.D. Ohio Nov. 14,

2013).

2. The Decertificaiton Stage..... ............................................................................... 13

Wlotkowski, 267 F.R.D. at 217; Douglas, 2007 U.S. Dist. LEXIS 32449,

*4;Shipes, 2012 U.S. Dist. LEXIS 39794 at *12; Myers et al. v. Marietta

Memorial Hospital et al., 2016 U.S. Dist. LEXIS 109153, *18 (S.D. Ohio

August 17, 2016).


ii

B. When Deciding Motions for Conditional Certification, Courts in the Sixth Circuit

do not Evaluate the Merits of the Claims or Individualized Allegastions or

Defenses.............................................................................................................................14

Struck v. PNC Bank N.A., 2013 U.S. Dist. LEXIS 19444, *12 (S.D. Ohio

Feb. 13, 2013; Swigart v. Fifth Third Bank, 288 F.R.D. 177, 214 (S.D.

Ohio 2012); Lacy, 2011 U.S. Dist. LEXIS 142050, *8-9; Creely v. HCR

Manorcare, Inc., 789 F. Supp. 2d 819 (N.D. Ohio 2011); Thompson v.

Bruister & Assocs., 967 F. Supp. 2d 1204, 1215 (M.D. Tenn. 2013);

Espinoza v. 953 Assocs. LLC, 280 F.R.D. 113, 130 (S.D.N.Y. 2011).

IV. OHIO LAW CLASS ACTION CLAIMS ........................................................................... 16

Fed. R. Civ. P. 23.

A. Plaintiffs Have Satisfied the Rule 23(a) Prerequisites for Class

Certification......................................................................................................................17

Fed. R. Civ. P. 23(a).

1. The Numerosity Requirement..... ......................................................................... 17

Fed. R. Civ. P. 23(a)(1); Saur v. Snappy Apple Farms, Inc., 203 F.R.D.

281, 286 (W.D. Mich. 2001); Afro American Patrolmens League v. Ducks,

503 F. 2d 294 (6th Cir. 1974); Mallory v. Mortgage Am., Inc., 67 F. Supp.

2d 601, 604 n.3 (S.D.W.Va. 1999); Krieger v. Gast, 197 F.R.D. 310, 314

(W.D. Mich 2000); Swigart, 288 F.R.D. at 18.

2. The Commonality Requirement........................................................................... 18

Fed. R. Civ. P. 23(a)(2); Forbush v. J.C. Penny Co. Inc., 994 F.2d 1101,

1106 (5th Cir. 1993; In re American Medical Systems, Inc., 75 F.3d 1069,

1080 (6th Cir. 1996); Sprague v. General Motors Corp.,133 F.3d 388, 397

(6th Cir. 1998; Alkire v. Irving, 330 F. 3d 802, 820 (6th Cir. 2003);

Laichev, 269 F.R.D. at 640; Saur, 203 F.R.D. at 287; Sterling v. Velsicol

Chemical Corp., 855 F.2d 1188, 1197 (6th Cir. 1988); Swigart, 288

F.R.D. at 184.

3. The Typicality Requirement................................................................................. 21

Fed. R. Civ. P. 23(a)(3); Laichev, 269 F.R.D. at 640; Swigart, 288 F.R.D.

at 185; Alpern v. UtiliCorp United, Inc., 84 F.3d 1525, 1540 (8th Cir.

1996); Gaspar v. Linvatec Corp., 167 F.R.D. 51, 57 (N.D. Ill. 1996).

4. Adequacy of Representationt..... .......................................................................... 22

Fed. R. Civ. P. 23(a)(4); Swigart, 288 F.R.D. at 185; Thomas v.

SmithKline, 201 F.R.D. 386, 396 (E.D. Pa. 2001).


iii

B. Plaintiffs Have Satisfied the Requirements of Rule 23(b), Permitting this Court to

Certify This Case as a Class Action...............................................................................23

Fed. R. Civ. P. 23(a); Swigart, 288 F.R.D. at 186.

1. Common Questions of Law and Fact Predominate..... ....................................... 24

Ohio Minimum Fair Wage Standards Act; Integrity Staffing Solutions, Inc.

v. Busk, 135 S. Ct. 513, 188 L. Ed. 2d 374 (2014).

2. A Class Action is a Superior Method of Adjudication..... ................................... 25

Fed. R. Civ. P. 23(b); Laichev, 269 F.R.D. at 642; Tedrow v. Cowles,

2007 U.S. Dist. LEXIS 67391, *26 (S.D. Ohio Sept. 12, 2007).

V. PLAINTIFFS’ PROPOSED CLASS NOTICE ................................................................... 27

A. The Court Should Approve Plaintiffs' Proposed Notice of Collective Action and

Class Action Lawsuit and Authorize THem to Send the Notice by Regular Mail and

Electronic Mail.................................................................................................................27

Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165, 172, 110 S.Ct. 482,

107 L.Ed.2d 480 (1989); Swigart, 276 F.R.D. at 214; Struck v. PNC Bank

N.A., 2013 U.S. Dist. LEXIS 19444, *21 (S.D. Ohio Feb. 13, 2013); Lutz v.

Huntington Bancshares, Inc., 2013 U.S. Dist. LEXIS 56477, *19-20 (S.D.

Ohio Apr. 19, 2013); Lemmon v. Harry & David Operations, 2016 U.S.

Dist. LEXIS 11810, at *20-21 (S.D. Ohio Jan. 20, 2016); Andrew C.

Brunsden, Hybrid Class Actions, Dual Certification, & Wage Law

Enforcement in the Federal Courts, 29 Berkeley J. Emp. & Lab. L. 269,

295 (2008); Morris v. Lettire Constr. Corp., 896 F. Supp. 2d 265, 275

(S.D.N.Y. 2012); Benedict v. Hewlett-Packard Co., 2014 U.S. Dist. LEXIS

18594, *62 (N.D. Cal. Feb. 13, 2014); Chhab v. Darden Rests., Inc., 2013

U.S. Dist. LEXIS 135926, *15 (S.D.N.Y. Sept. 19, 2013); Harris v. Vector

Mktg. Corp., 716 F. Supp. 2d 835, 847 (N.D. Cal. 2010); Adams v. Inter-

Con Sec. Sys., Inc., 2007 U.S. Dist. LEXIS 83147, at *14 (N.D. Cal. Oct.

30, 2007).

B. The Court Should Approve Plaintiffs' Request to Send Notice to Laborers and

Laborer Foremen Employed by Defendant at any Time WIthin the Three Years

Preceding the Commencement of this Action...............................................................29

Claeys v. Gandalf Ltd., 303 F. Supp. 2d 890, 893 (S.D. Ohio 2004);

McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988).

VI. CONCLUSION ..................................................................................................................... 31


iv

TABLE OF AUTHORITIES

Cases

Adams v. Inter-Con Sec. Sys., Inc., 2007 U.S. Dist. LEXIS 83147, at *14 (N.D. Cal. Oct. 30,

2007) ........................................................................................................................................ .29

Afro American Patrolmens League v. Ducks, 503 F. 2d 294 (6th Cir. 1974) .......................... ..1,18

Alkire v. Irving, 330 F. 3d 802, 820 (6th Cir. 20003) .................................................................. .19

Alpern v. UtiliCorp United, Inc., 84 F.3d 1525, 1540 (8th Cir. 1996) ......................................... 21

Benedict v. Hewlett-Packard Co., 2014 U.S. Dist. LEXIS 18594, *62 (N.D. Cal. Feb. 13, 2014)

.................................................................................................................................................. .29

Cahill v. City of New Brunswick, 99 F. Supp. 2d 464, 479 (D. N.J. 2000).................................... .9

Castillo v. Morales, Inc., 2014 U.S. Dist. LEXIS 123409, *6 (S.D. Ohio Sept. 4, 2014) ............ 11

Claeys v. Gandalf Ltd., 303 F. Supp. 2d 890, 893 (S.D. Ohio 2004) ........................................... 29

Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006) ...................................... .10,11

Cornell v. World Wide Bus. Servs. Corp., 2014 U.S. Dist. LEXIS 119586, *7 (S.D. Ohio Aug.

27, 2014) .................................................................................................................................. .11

Creely v. HCR Manorcare, Inc., 789 F. Supp. 2d 819 (N.D. Ohio 2011) ................................... .14

Cross v. National Trust Life Ins. Co., 553 F.2d 1026, 1030-1031 (6th Cir. 1977) ...................... .23

Douglas v. GE Energy Reuter Stokes, 2007 U.S. Dist. LEXIS 32449, *25 (N.D. Ohio Apr. 30,

2007). .................................................................................................................................. .12,14

Espinoza v. 953 Assocs. LLC, 280 F.R.D. 113, 130 (S.D.N.Y. 2011) .......................................... 15

Forbush v. J.C. Penny Co. Inc., 994 F.2d 1101, 1106 (5th Cir. 1993) ......................................... 18

Gaspar v. Linvatec Corp., 167 F.R.D. 51, 57 (N.D. Ill. 1996) ..................................................... 21

Harris v. Vector Mktg. Corp., 716 F. Supp. 2d 835, 847 (N.D. Cal. 2010)................................. .29

Harrison v. McDonald’s Corp., 411 F.Supp.2d 862, 864 (S.D. Ohio 2005) .................................. 9

Heaps v. Safelite Solutions, LLC., 2011 U.S. Dist. LEXIS 40089, at *4 (S.D. Ohio Apr. 5, 2011)

................................................................................................................................................... 12

Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165, 172, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989)

................................................................................................................................................... 27


v

In re American Medical Systems, Inc., 75 F.3d 1069, 1080 (6th Cir. 1996) ........................... 18,19

In re FedEx Ground Package Systems, Inc., 273 F.R.D. 424, 438 (N.D. Ind. 2012) ................... 23

Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513, 188 L. Ed. 2d 374 (2014) ................... 25

Krieger v. Gast, 197 F.R.D. 310, 314 (W.D. Mich 2000) ............................................................ 17

Lacy v. Reddy Elec. Co., 2011 U.S. Dist. LEXIS 142050, *5 (S.D. Ohio 2011). ...... .10,12, 14, 15

Laichev v. JBM, Inc., 269 F.R.D. 633, 636 (S.D. Ohio 2008) ............................ 16,19,20,21,22,26

Lemmon v. Harry & David Operations, 2016 U.S. Dist. LEXIS 11810, at *20-21 (S.D. Ohio Jan.

20, 2016) .................................................................................................................................. .28

Lewis, et al. v. Huntington Nat. Bank, 789 F. Supp. 2d 863, 867 (S.D. Ohio 2011)). ............ .11,12

Lutz v. Huntington Bancshares, Inc., 2013 U.S. Dist. LEXIS 56477, *19-20 (S.D. Ohio Apr. 19,

2013) ........................................................................................................................................ .28

Mallory v. Mortgage Am., Inc., 67 F. Supp. 2d 601, 604 n.3 (S.D.W.Va. 1999) ........................ .17

McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988)..................................................... .30

Morris v. Lettire Constr. Corp., 896 F. Supp. 2d 265, 275 (S.D.N.Y. 2012) .............................. .28

Myers et al. v. Marietta Memorial Hospital et al., 2016 U.S. Dist. LEXIS 109153, *18 (S.D.

Ohio August 17, 2016). ............................................................................................................. 14

O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 582–83 (6th Cir. 2009). ............................... 9

Pritchard v. Dent Wizard Int’l, 210 F.R.D. 591, 595 (S.D. Ohio 2002). .................................... .11

Saur v. Snappy Apple Farms, Inc., 203 F.R.D. 281, 286 (W.D. Mich. 2001) ................... .17,18,20

Shipes v. Amurcon Corp., 2012 U.S. Dist. LEXIS 39794 at *9 (E.D. Mich. 2012) ......... . 10,11,14

Sisson v. OhioHealth Corp., 2013 U.S. Dist. LEXIS 162464, *21-22 (S.D. Ohio Nov. 14, 2013)

................................................................................................................................. ................. 12

Sprague v. General Motors Corp.,133 F.3d 388, 397 (6th Cir. 1998) ........................................ .19

Sterling v. Velsicol Chemical Corp., 855 F.2d 1188, 1197 (6th Cir. 1988).................................. 20

Stout v. Remetronix, Inc., 2013 U.S. Dist. LEXIS 112563, *6 (S.D. Ohio Aug. 9, 2013). .......... . 9

Struck v. PNC Bank N.A., 2013 U.S. Dist. LEXIS 19444, *12 (S.D. Ohio Feb. 13, 2013) .. . 14,28


vi

Swigart v. Fifth Third Bank, 288 F.R.D. 177, 214 (S.D. Ohio

2012).............................................................................................14,16,18,20,21,22,23,24,25,27

Tedrow v. Cowles, 2007 U.S. Dist. LEXIS 67391, *26 (S.D. Ohio Sept. 12, 2007) ................... .26

Thompson v. Bruister & Assocs., 967 F. Supp. 2d 1204, 1215 (M.D. Tenn. 2013) ................... . 15

Thomas v. SmithKline, 201 F.R.D. 386, 396 (E.D. Pa. 2001)...................................................... .23

Thomas v. Speedway SuperAmerica, LLC, 506 F.3d 496, 501 (6th Cir. 2007) ............................ 16

Wlotkowski v. Michigan Bell Tel. Co., 267 F.R.D. 213, 217 (E.D. Mich. 2010)................... . 10,13

Statutes

29 U.S.C. § 207(a)(1).. ................................................................................................................... 9,

29 U.S.C. § 216(b). ................................................................................................................. 1,9,14

R.C. § 4113.15 ................................................................................................................................ 8

R.C. § 4111.03(A) ......................................................................................................................... 16

29 U.S.C. § 255(a) ........................................................................................................................ 29

Rules

Fed. R. Civ. P. 23 ................................................................................................................... passim

Other Authorities

Andrew C. Brunsden, Hybrid Class Actions, Dual Certification, & Wage Law Enforcement in the

Federal Courts, 29 Berkeley J. Emp. & Lab. L. 269, 295 (2008) ............................................ 28


MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ CONDITIONAL

COLLECTIVE ACTION CERTIFICATION AND CLASS ACTION CERTIFICATION

I. INTRODUCTION

On October 19, 2016 Plaintiff Christopher Minor and Plaintiff Donald Skaggs, on behalf

of themselves and other similarly situated current and former employees, commenced this action

by filing a Complaint, alleging that Defendant Twin Rivers Construction, Inc. unlawfully failed

to pay overtime compensation for all hours worked in excess of 40 in a workweek including

compensable travel time in violation of the Fair Labor Standards Act and Ohio law.

(Complaint, Doc. No. 1)

Count One of the Complaint seeks relief under the Fair Labor Standards Act (“FLSA”),

29 U.S.C. §201, et seq. Plaintiffs pursue these FLSA claims on behalf of themselves and all

other similarly situated employees as a representative action under the FLSA’s opt-in provision,

29 U.S.C. §216(b). Plaintiffs’ proposed collective class is defined as: All current and former

Laborers and Laborer Foremen employed by Defendant for three years prior to the date of filing

this Complaint, who were paid hourly and have not been paid overtime pay for all hours worked

in a week in excess of 40 for the time spent traveling from the Columbus shop to the jobsite, or

from the jobsite back to the Columbus shop. (Compl. ¶66).

Count Two of the Complaint seeks relief under the Ohio Minimum Fair Wage Standards

Act (OMFWSA), pursuant to Rule 23 of the Federal Rules of Civil Procedure. Plaintiffs pursue

their OMFWSA claims on behalf of themselves and all other members of the proposed Class,

defined as: All current and former Laborers and Laborer Foremen employed by Defendant for

two years prior to the date of filing the Complaint, who were paid hourly and have not been paid

overtime pay for all hours worked in a week in excess of 40 for the time spent traveling from the

Columbus shop to the jobsite, or from the jobsite back to the Columbus shop. (Complaint ¶77).


2

While the FLSA and OMFWSA prohibit the same wage and hour practices, their

operation in the class context differs, as set forth in detail below. In the instant motion,

Plaintiffs first seek an order from the Court conditionally certifying Plaintiff’s proposed

collective class under the FLSA. Second, Plaintiff’s seek an order from the Court certifying this

action as a class action pursuant to Fed. R. Civ. P. 23(c). Finally, Plaintiffs ask this Court to

approve their designation of the law firm of Mansell Law, LLC as Class Counsel pursuant to

Fed. R. Civ. P. 23(g), and authorizing Plaintiffs to send notices of this lawsuit to the putative

class members, informing them of their rights, and providing them with an opportunity to join

the action by way of the Proposed Notice of Collective Action and Class Action, Exhibit 1.1

II. RELEVANT FACTUAL BACKGROUND

A. Defendant’s Business Operations

Defendant Twin Rivers Construction, Inc. is in the business of completing bridge

restoration on jobsites throughout the State of Ohio. (Complaint ¶15) Defendant maintains its

home office in Marietta, Ohio. Defendant also maintains a large “shop” or yard located on Haul

Road in Columbus, Ohio, where it stores company trucks, materials, and tools. (Compl. ¶16)

In order to complete the aesthetic restoration of the bridges, Defendant employs

approximately 30 or more individuals as Laborers or Laborer Foremen at any given time.

1 Alternatively, Plaintiffs request that the Court direct the parties to jointly propose procedures for

distribution of the Proposed Notice of Collective Action and Class Action Lawsuit.


3

(Compl. ¶17; Declaration of Plaintiff Minor, ¶10; Declaration of Plaintiff Skaggs ¶8, attached

hereto as Exhibit B) Upon information and belief, Defendant has employed more than 50

Laborers or Laborer Foremen over the course of the two years prior to October 19, 2016 (the

date on which the Complaint was filed) (Doc. No. 1) Laborers’ principle job duties include:

loading tools and materials on company-owned trucks, driving trucks to jobsites, sand-blasting,

patching, painting and any other task needed to complete the aesthetic restoration of the bridge

on Defendant’s various jobsites. (Compl. ¶18; Minor Dec. ¶6; Skaggs Dec ¶5) Laborer

Foreman’s principle job duties on the jobsite are identical to the Laborers. In addition, the

Laborer Foremen are also responsible for organizing the jobsite, assigning tasks to the Laborers,

communicating with the contractor on the jobsite, and completing all paperwork needed for the

work on the jobsite. (Compl. ¶19; Minor Dec. ¶7) Typically, one Laborer Foreman is assigned

to each jobsite. The number of Laborers assigned to a jobsite depends on the particular project

to be completed. (Compl. ¶20; Minor Dec. ¶9; Skaggs Dec ¶7) Defendant often works multiple

jobs and jobsites at any given time. (Minor Dec. ¶5; Skaggs Dec ¶4)

B. Laborers’ and Laborer Foremen’s Employment & Work Schedules

Plaintiffs are both former employees of Defendant. Plaintiff Minor began working for

Defendant on or around May 9, 2013 in the position of Laborer, and he was promoted to the

position of Laborer Foreman in or about May 2014. (Compl. ¶¶12-13; Minor Dec. ¶3) Plaintiff

Minor’s last day of employment with Defendant was on or around September 21, 2016. (Minor

Dec. ¶4) Plaintiff Skaggs worked as a Laborer for Defendant between May 2014 and November

2014, and for approximately three weeks in May 2015. (Compl. ¶14; Skaggs Dec. ¶2) At all


4

times during their employment with Defendant, Plaintiffs were subjected to Defendant’s pay

practices set forth herein. (Minor Dec. ¶36; Skaggs Dec. ¶34)

Throughout Plaintiffs’ employment and at all relevant times herein, Laborers and Laborer

Foremen are assigned either to the day or night shift. (Compl. ¶¶21, 40; Minor Dec. ¶16;

Skaggs Dec. ¶14) Laborers and Laborer Foremen do not have set schedules, as their workday

hours vary depending on the particular jobsite to which they are assigned. (Compl. ¶40; Minor

Dec. ¶¶16-17; Skaggs Dec. ¶¶14-15) Laborers and Laborer Foremen are required to begin each

workday by driving from their homes in their personal vehicles to Defendant’s Columbus shop

location (“the shop”) (Compl. ¶22; Minor Dec. ¶18; Skaggs Dec. ¶16) Laborers and Laborer

Foremen generally arrive at the shop between 4:00 a.m. and 6:00 a.m. (day shift), and between

5:00 p.m. and 7:00 p.m. (night shift) to begin their shifts. (Compl. ¶23; Minor Dec. ¶19; Skaggs

Dec. ¶17) When Laborers and Laborer Foremen arrive at the shop, they "clock-in," indicating

that they are performing work at the shop—designated by Defendant as “shop time.” (Compl.

¶24; Minor Dec. ¶20; Skaggs Dec. ¶18) Defendant currently utilizes “Clock Shark”—a GPS

time-tracking application accessed by Laborers and Laborer Foremen on their cell phones to

clock-in and out and track their hours worked. (Compl. ¶¶50-51; Minor Dec. ¶34; Skaggs Dec.

¶32) Defendant has utilized different applications for clocking-in and out in the past. (Minor

Dec. ¶35; Skaggs Dec. ¶33)

“Shop time” includes time spent during each shift loading material and tools onto

Defendant’s trucks and gathering the necessary instructions and other information to perform the

work on the jobsite to which they are assigned that day. (Compl. ¶25; Minor Dec. ¶21; Skaggs


5

Dec. ¶19) “Shop time” also includes the time Laborers and Laborer Foremen spend at the shop

unloading tools and unused materials and cleaning the trucks after returning from a jobsite.

(Compl. ¶25; Minor Dec. ¶21; Skaggs Dec. ¶19)

After completion of their duties at the shop, Laborers and Laborer Foreman are required

to, and do, “clock-out.” (Compl. ¶28; Minor Dec. ¶¶22-24; Skaggs Dec. ¶¶20-22) Immediately

thereafter, Laborer and Laborer Foreman drive Defendant’s company vehicles loaded with

Defendant’s tools and materials from the shop to the Laborers’ and Laborer Foremen’s assigned

jobsite. (Compl. ¶29; Minor Dec. ¶22; Skaggs Dec. ¶20) Laborers’ and Laborer Foremen’s

jobsites are located throughout the State of Ohio and require them to drive between 2.5 hours and

5 minutes one-way from the shop to the jobsite on any given day. (Compl. ¶31; Minor Dec.

¶23; Skaggs Dec. ¶21)

Upon arrival at the jobsite, Laborers and Laborer Foremen clock-in, and enter on the

phone application the name of the jobsite or project on which they are going to begin work.

(Compl. ¶32; Minor Dec. ¶25; Skaggs Dec. ¶23) Laborers and Laborer Foremen typically work

between 10 and 12 hours per day at their assigned jobsite. (Compl. ¶33; Minor Dec. ¶26; Skaggs

Dec. ¶24)

At the conclusion of their work day at the jobsite, Laborers and Laborer Foremen are

required to, and do, clock-out. (Compl. ¶34; Minor Dec. ¶27; Skaggs Dec. ¶25) Immediately

thereafter, they drive Defendant’s company trucks, along with their tools and any unused

materials, back to the shop. (Compl. ¶34; Minor Dec. ¶28; Skaggs Dec. ¶26) Upon arriving at

the shop, Laborers and Laborer Foremen clock back in (indicating this time as “shop time”), and


6

they unload the tools and unused materials from the trucks and clean the trucks. (Compl. ¶¶25,

34; Minor Dec. ¶29; Skaggs Dec. ¶27) Laborers and Laborer Foremen then drive from the shop

back to their homes in their personal vehicles. (Compl. ¶35; Minor Dec. ¶31; Skaggs Dec. ¶29)

On some occasions, the task at a particular jobsite takes less than one day. In those

instances, Laborers and Laborer Foremen receive multiple assigned jobsites for a particular shift.

(Compl. ¶37; Minor Dec. ¶32; Skaggs Dec. ¶30) When this occurs, Laborers and Laborer

Foremen are instructed to clock-out and immediately clock back in when they leave a jobsite.

(Compl. ¶37; Minor Dec. ¶33; Skaggs Dec. ¶31) When they clock back in for the drive between

jobsites, they designate that time as "travel time." (Compl. ¶37; Minor Dec. ¶33; Skaggs Dec.

¶31)

C. Defendant’s Pay Practices

For the previous three years preceding the filing of the instant action, Defendant used

several different methods for tracking Laborers’ and Laborer Foremen’s work time2; however,

despite the differences in applications or methods used, Defendant’s pay policies remained the

same. (Compl. ¶54; Minor Dec. ¶36; Skaggs Dec. ¶34) Laborers and laborer Foreman are paid

on an hourly basis. (Compl. ¶39; Minor Dec. ¶14; Skaggs Dec. ¶36) Laborers and Laborer

2 See Complaint, Doc. No. 1, ¶¶34-52 (setting forth the three different time-tracking methods used by

Defendant over the course of the previous three years, including an automated phone system, a cell phone

application called “TSheets,” and the cell phone application currently used by Defendant, “Clock Shark.”


7

Foremen regularly work more than 40 hours per workweek, (Compl. ¶42; Minor Dec. 41; Skaggs

Dec. ¶40) and are subjected to the same pay policies. (Compl. ¶54; Minor Dec. ¶15; Skaggs

Dec. ¶13)

During the previous three years preceding the filing of this action, Defendants instructed

Laborers and Laborer Foremen to keep track of their time, and to designate their “shop time,”

“travel time” between jobsites, and work time on the jobsite separately. (Compl. ¶45; Minor

Dec. ¶37; Skaggs Dec. ¶35) For example, Plaintiff Minor was paid the following hourly rates at

the time of his separation, depending on the type of work performed:

a. “Shop time” is compensated at a rate of $15.00 per hour.

b. “Travel time” between jobsites in a single day is compensated at a rate

of $10.00 per hour.

c. Work performed while on the jobsite is compensated at a rate of $30.00

per hour.

(Minor Dec. ¶39) Plaintiff Skaggs, a Laborer (non-foremen) was paid the following

hourly rates at the time of his separation, depending on the type of work performed:

a. “Shop time” is compensated at a rate of $15.00 per hour.

b. “Travel time” between jobsites in a single day is compensated at a rate

of $10.00 per hour.

c. Work performed while on the jobsite is compensated at a rate of $29.22

per hour.

(Compl. ¶¶42-43; Skaggs Dec. ¶37)

During the previous three years from the date of the filing of this action, Laborers and

Laborer Foremen were not compensated—at any rate—for the time spent traveling from the

Columbus shop to the jobsite at the start of their shifts, or from the jobsite back to the Columbus

shop at the end of their shifts. (Compl. ¶53; Minor Dec. ¶40; Skaggs Dec. ¶38) Defendant


8

instructed and required them to remain “clocked-out” during this time. (Compl. ¶30; Minor Dec.

¶41; Skaggs Dec. ¶39) Laborers and Laborer Foremen regularly worked more than 40 hours in

a workweek—excluding the uncompensated travel time from the Columbus shop to the jobsite,

or from the jobsite back to the Columbus shop. (Compl. ¶41; Minor Dec. ¶42; Skaggs Dec. ¶40).

Defendant’s failure to designate as compensable work time, the Laborers’ and Laborer

Foremen’s travel time from the Columbus shop to the jobsite, or from the jobsite back to the

Columbus shop, resulted in unpaid overtime wages due to Laborers and Laborer Foremen

pursuant to the Fair Labor Standards Act and the Ohio Minimum Fair Wage Standards Act.

(Compl. ¶64; Minor Dec. ¶43; Skaggs Dec. ¶41)

In addition, Ohio law requires that employers pay their employees within thirty (30) days

of the date on which employees performed the compensable work. R.C. § 4113.15(a). As

described above, Defendant did not pay its Laborers and Laborer Foremen all overtime

compensation they were owed. Thus, Defendant necessarily failed to pay its Laborers and

Laborer Foremen all of their wages owed within thirty days from the date they performed the

compensable work. For this failure, Defendant has also violated Ohio Revised Code, Section

4113.15. (Complaint, ¶¶90-92).

D. Plaintiff Minor’s Complaint Regarding Defendant’s Pay Practices

Plaintiff Minor voiced his complaints regarding Defendant’s pay practices on two

separate occasions—once to Defendant’s President and CEO, Ms. Jeanne Wetz-Elswick, and

once to Plaintiff Minor’s supervisor, Mr. Samuel Thompson. (Compl. ¶55) Ms. Elswick

informed Plaintiff that she would “look into it,” but nothing was ever done to address Plaintiff


9

Minor’s concerns. (Compl. ¶¶56, 62) Further, Plaintiff Minor was criticized by Mr. Thompson

for addressing the issue of proper compensation with Ms. Elswick. (Compl. ¶58)

III. FLSA COLLECTIVE ACTION CLAIMS

A. Legal Standard for Conditional Certification of FLSA Collective Action

The Fair Labor Standards Act (FLSA) requires employers to pay their employees one and

a half times that employee’s regular rate of pay, for all hours worked in a workweek in excess of

40. See 29 U.S.C. §207(a)(1). Section 216(b) of the FLSA provides that an “action . . . may be

maintained against any employer . . . 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.” 29 U.S.C. § 216(b). Importantly, unlike a Rule 23 class action, the

commencement of a representative action under § 216(b) does not toll the running of the 2 to 3

year statute of limitations period applicable to FLSA actions for similarly situated plaintiffs.

See 29 U.S.C. § 256(b); Stout v. Remetronix, Inc., 2013 U.S. Dist. LEXIS 112563, *6 (S.D. Ohio

Aug. 9, 2013) (citing Cahill v. City of New Brunswick, 99 F. Supp. 2d 464, 479 (D. N.J. 2000)).

When determining whether a lawsuit may proceed as a collective action, courts typically

use a two-tiered certification approach. Harrison v. McDonald’s Corp., 411 F.Supp.2d 862, 864

(S.D. Ohio 2005). In recognition of the judicial efficiencies and cost-saving benefits of collective

actions, courts in the Sixth Circuit follow the two-step approach when deciding whether the

named plaintiffs are similarly situated for the purpose of certifying a collective action. See

O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 582–83 (6th Cir. 2009) (district courts follow


10

a two-stage certification process to determine whether the opt-in plaintiffs and lead plaintiffs are

similarly situated).

The first stage, known as the “notice stage,” occurs “at the beginning of discovery.”

Shipes v. Amurcon Corp., 2012 U.S. Dist. LEXIS 39794 at *9 (E.D. Mich. 2012) (citing Comer

v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006)); see also Lacy v. Reddy Elec. Co.,

2011 U.S. Dist. LEXIS 142050, *5 (S.D. Ohio 2011). At this stage, the court determines

whether the suit should be “conditionally certified” as a collective action so that potential opt-in

plaintiffs can be informed of the pending lawsuit and of their right to participate. Comer, 454

F.3d at 546-47 (holding that “[t]he court must first consider whether plaintiffs have shown that

the employees to be notified are, in fact, ‘similarly situated’”); see also Lacy, 2011 U.S. Dist.

LEXIS 142050 at *6 (“Conditional certification is meant only to aid in identifying similarly

situated employees.”). The second stage, the “decertification stage,” which occurs after

discovery is complete, is reached if the defendant moves to decertify the class. See e.g.,

Wlotkowski v. Michigan Bell Tel. Co., 267 F.R.D. 213, 217 (E.D. Mich. 2010) (the final

certification decision is made at the second stage, “after all of the opt-in forms have been

received and discovery has concluded”). This case is currently in the notice stage because the

instant § 216(b) motion was filed before discovery has commenced.

1. The Notice Stage

The threshold issue at the notice stage is whether the plaintiffs have successfully set forth

evidence of a class of “similarly situated” potential plaintiffs. Lacy, 2011 U.S. Dist. LEXIS

142050 at *5 (citing Comer, 454 F.3d at 546). At this stage, the court does not conclude whether


11

a class of similarly situated plaintiffs actually exists; rather, it determines whether the plaintiffs

have made a “modest factual showing” of similar situations which justifies sending notice to

potential plaintiffs of the suit. Id. (quoting Pritchard v. Dent Wizard Int’l, 210 F.R.D. 591, 595

(S.D. Ohio 2002); see also Lewis, et al. v. Huntington Nat. Bank, 789 F. Supp. 2d 863, 867 (S.D.

Ohio 2011) (“Plaintiffs must only make a modest showing that they are similarly situated to the

proposed class of employees”). Individuals are “similarly situated” for purposes of the FLSA if

their “causes of action accrued in approximately the same manner as those of the named

plaintiffs.” Castillo v. Morales, Inc., 2014 U.S. Dist. LEXIS 123409, *6 (S.D. Ohio Sept. 4,

2014). “[T]he plaintiff must show only that ‘his position is similar, not identical to the positions

held by the putative class members.’” Comer, 454 F.3d at 546-47 (quoting Pritchard, 210 F.R.D.

at 595); see also Cornell v. World Wide Bus. Servs. Corp., 2014 U.S. Dist. LEXIS 119586, *7

(S.D. Ohio Aug. 27, 2014) (stating that plaintiffs’ “claims and damages do not have to be

identical.”).

To secure conditional certification of their collective action, plaintiffs may rely on

pleadings and supplementary materials such as affidavits and other supporting documents. See

Shipes, 2012 U.S. Dist. LEXIS 39794 at *10 (noting that “at this stage courts typically

conditionally certify a representative class because the court has only minimal evidence before

it—the pleadings and affidavits submitted by the parties”). Courts in the Southern District of

Ohio, when evaluating whether employees are similarly situated, consider;

[w]hether potential plaintiffs were identified; whether affidavits of potential

plaintiffs were submitted; whether evidence of a widespread discriminatory plan

was submitted, and whether as a matter of sound class management, a manageable

class exists.


12

Lewis, 789 F. Supp. 2d at 868 (citing Heaps v. Safelite Solutions, LLC., 2011 U.S. Dist.

LEXIS 40089, at *4 (S.D. Ohio Apr. 5, 2011)).

Significantly, courts in the Sixth Circuit have rejected any requirement that plaintiffs

demonstrate interest by potential opt-in plaintiffs in order to obtain court-facilitated notice. For

example, in Douglas v. GE Energy Reuter Stokes, the district court found that plaintiffs had met

their initial burden of showing that there were other similarly situated individuals based upon the

affidavits of the named plaintiff and a second individual. 2007 U.S. Dist. LEXIS 32449, *25

(N.D. Ohio Apr. 30, 2007). The Douglas affidavits alleged that the plaintiffs’ job

responsibilities were similar to those of their co-workers and were found sufficient to warrant

conditional certification as a collective action. See also Lacy, 2011 U.S. Dist. LEXIS 142050 at

*5 (“No minimum number of similarly-situated employees is required for conditional

certification.”); Sisson v. OhioHealth Corp., 2013 U.S. Dist. LEXIS 162464, *21-22 (S.D. Ohio

Nov. 14, 2013) (motion for conditional certification was granted when it was supported by one

declaration).

This Court should conditionally certify an FLSA class defined as follows:

All current and former Laborers and Laborer Foremen employed by Defendant

between October 19, 2013 and the present, who were paid hourly and have not

been paid overtime pay for all hours worked in a week in excess of 40 for the time

spent traveling from the Columbus shop to the jobsite, or from the jobsite back to

the Columbus shop.

All Laborers and Laborer Foremen employed by Defendant are paid on an hourly basis,

all regularly work more than 40 hours in a workweek, and are all subject to Defendant’s pay

policies. (Complaint ¶¶39, 41, 54) All Laborers and Laborer Foremen are paid an hourly wage


13

for time spent working at the shop (“shop time”); for time spent traveling between jobsites in a

single day (“travel time”) and for time spent working on the jobsites. (Id. ¶¶45, 46) However,

Laborers and Laborer Foremen are not paid for the time spent driving Defendant’s company

vehicles, loaded with Defendant’s tools and materials, from the shop to the jobsite. (Id. ¶53)

Similarly, Laborers and Laborer Foremen are not paid for the time spent driving Defendant’s

company trucks back to the shop after leaving the jobsites at the conclusion of their onsite

workday. (Id.)

The Laborers and Laborer Foremen are similarly situated in their job duties and are

treated the same by Defendant in terms of their entitlement to payment for this travel time. Due

to Defendant’s pay policy regarding travel time from the shop to the jobsites, and from the

jobsites back to the shop, Laborers and Laborer Foremen are not paid an overtime premium, or

compensated at all, for all hours worked in excess of 40 in a workweek. Thus, all Laborers and

Laborer Foremen are entitled to receive notice of this action. As a practical matter, those

current and former Laborers and Laborer Foremen will be foreclosed from participating in this

case unless they receive notice.

2. The Decertification Stage

At the decertification stage, courts generally apply a higher level of scrutiny at the second

stage because the parties have developed a more complete factual record through discovery.

Wlotkowski, 267 F.R.D. at 217. “If the claimants are similarly situated, the district court allows

the representative action to proceed to trial. If the claimants are not similarly situated, the district


14

court decertifies the class, and the opt-in plaintiffs are dismissed without prejudice.” Douglas,

2007 U.S. Dist. LEXIS 32449 at *14; see also Shipes, 2012 U.S. Dist. LEXIS 39794 at *12.

Accordingly, Defendant’s rights are not prejudiced by early notice and conditional

certification, because it will have the opportunity to move for decertification upon completion of

discovery. See Myers et al. v. Marietta Memorial Hospital et al., 2016 U.S. Dist. LEXIS

109153, *18 (S.D. Ohio August 17, 2016).

B. When Deciding Motions for Conditional Certification, Courts in the Sixth

Circuit do not Evaluate the Merits of the Claims or Individualized

Allegations or Defenses.

Consistent with the purpose of § 216(b) Notice, it is well established in the Southern

District of Ohio, that in assessing whether Plaintiffs have met their burden to conditionally

certify a class, the Court does not consider the merits of the claims, resolve disputes of fact, or

evaluate the credibility of the witnesses or testimony. Struck v. PNC Bank N.A., 2013 U.S. Dist.

LEXIS 19444, *12 (S.D. Ohio Feb. 13, 2013) (citing Swigart v. Fifth Third Bank, 288 F.R.D.

177, 214 (S.D. Ohio 2012) (“At the notice stage, district courts within the Sixth Circuit typically

do not consider the merits of the plaintiff’s claims, resolve factual disputes, make credibility

determinations, or decide substantive issues.”) and Lacy, 2011 U.S. Dist. LEXIS 142050, *8-9

(“Requiring any more factual support from Plaintiff at this early stage, or weighing competing

factual assertions, would intrude improperly into the merits of the action, essentially imposing a

burden upon Plaintiff to prove the factual predicates of his claim as a precondition to obtaining

preliminary conditional certification.”). See also Creely v. HCR Manorcare, Inc., 789 F. Supp.

2d 819 (N.D. Ohio 2011) ("[S]imilarly situated . . . does not touch upon the merits of plaintiffs'


15

claims."). “It is not the role of the Court at this stage of the proceedings to decide the case on

the merits. To do so at the juncture, when Plaintiffs have conducted little or no discovery, would

be unfair.” Lacy, 2011 U.S. Dist. LEXIS 142050, *7-8. Thus, this Court should refuse to

consider any argument from Defendant at this stage regarding the merits of the case when

determining whether to conditionally certify Plaintiff’s proposed class.

Further, at this first stage of the collective certification process, courts in this circuit do

not evaluate individualized allegations or defenses. Thompson v. Bruister & Assocs., 967 F.

Supp. 2d 1204, 1215 (M.D. Tenn. 2013). In Thompson, the defendant argued that the plaintiff

technicians were not similarly situated due to the differences in their job duties, their differences

in pay structure, the fact that some received bonuses while others did not, that some worked

overtime hours and were paid for it while others did not, and that some may not have valid

claims under the Motor Carrier Act. Id. at 1215. Defendant argued that these differences

would require individual day-by-day calculations to determine the amount, if any, each

technician was owed. Id. The Court refused to decertify the class, noting: “Although

plaintiffs’ claims may raise individualized questions regarding the number of hours worked and

how much each employee was entitled to be paid, those differences go to the damages that each

employee is owed, not to the common question of Defendants’ liability.” Id. (citing Espinoza v.

953 Assocs. LLC, 280 F.R.D. 113, 130 (S.D.N.Y. 2011)).

Plaintiffs have provided more than sufficient evidence as this stage for the Court to grant

their request to conditionally certify the collective class.


16

IV. OHIO LAW CLASS ACTION CLAIMS

Plaintiffs have alleged in their second cause of action, a Rule 23 class action under Ohio

Revised Code § 4111.03, which requires an employer to pay employees at a rate of

time-and-a-half for all overtime, defined as any hours worked in excess of 40 hours per week.

R.C. § 4111.03(A). Ohio’s minimum wage and hour statute, O.R.C. § 4111 et seq., “expressly

incorporates the standards and principles found in the FLSA,” Thomas v. Speedway

SuperAmerica, LLC, 506 F.3d 496, 501 (6th Cir. 2007) (citing R.C. § 4111.03(A)), and

accordingly is interpreted similarly.

Federal Rule of Civil Procedure 23 provides a vehicle by which plaintiffs can assert class

actions for unpaid wages. Unlike the FLSA, Ohio law does not require employees to

affirmatively “opt-in” to the lawsuit and instead, allows employees to pursue their overtime

violation claims as “opt-out” class actions. See, e.g., Laichev v. JBM, Inc., 269 F.R.D. 633, 636

(S.D. Ohio 2008). Rule 23 establishes a two-step analysis to determine whether class

certification is appropriate. Swigart, 288 F.R.D. at 182. First, Plaintiffs must satisfy the four

prerequisites contained in Federal Rule Civil Procedure 23(a). Id. Second, Plaintiff’s action

must satisfy at least one of the three subdivisions provided in Rule 23(b). Id.

Plaintiff seeks certification of a class action, defining the class as follows:

All current and former Laborers and Laborer Foremen employed by Defendant

between October 19, 2014 and the present, who were paid hourly and have not

been paid overtime pay for all hours worked in a week in excess of 40 for the time

spent traveling from the Columbus shop to the jobsite, or from the jobsite back to

the Columbus shop.


17

Plaintiffs can demonstrate that they can satisfy the requirements necessary in order for

this Court to certify their proposed Rule 23 class.

A. Plaintiffs Have Satisfied the Rule 23(a) Prerequisites for Class

Certification.

Fed. R. Civ. P. 23(a) requires Plaintiffs to satisfy four prerequisites in order for the Court

to certify their proposed class. These include: (1) the class must be “so numerous that joinder of

all members is impracticable;” (2) “questions of law or fact common to the class” exist; (3) “the

claims or defenses of the representative parties” must be “typical of the claims or defenses of the

class;” and (4) “the representative parties” must “fairly and adequately protect the interests of the

class.” Fed. R. Civ. P. 23(a). Each of these requirements is satisfied here.

1. The Numerosity Requirement

First, the Court must determine is whether the class is sufficiently numerous so that

joinder is impracticable. Fed. R. Civ. P. 23(a)(1). “Numbers alone are not dispositive when the

numbers are small, but will dictate impracticability when the numbers are large.” Saur v. Snappy

Apple Farms, Inc., 203 F.R.D. 281, 286 (W.D. Mich. 2001). The Sixth Circuit has held that a

class of at least 35 plaintiffs is sufficient. Id. (citing Afro American Patrolmens League v.

Ducks, 503 F. 2d 294 (6th Cir. 1974)). See also Mallory v. Mortgage Am., Inc., 67 F. Supp. 2d

601, 604 n.3 (S.D.W.Va. 1999) (class of 50 members); Krieger v. Gast, 197 F.R.D. 310, 314

(W.D. Mich 2000) (holding that class certification was appropriate where plaintiffs alleged in his

complaint that “over 50” employees made up the proposed class). Further Plaintiff need not

prove the number of class members to a certainty. Id. at 314. The exact putative class size can

be determined by Defendant’s corporate documents. See id.


18

Courts also consider the issues inherent in the employment context making joinder

impracticable. Currently-employed putative class members are often deterred from initiating

their own individual lawsuits or affirmatively opting-in to the FLSA collective to recover for fear

of adverse employment action by their employer. Swigart, 288 F.R.D. at 183. This Court has

acknowledged that “in employment class actions like this one, a class member's potential fear of

retaliation is an important consideration in deciding whether joinder is impracticable and thus

whether the numerosity requirement is satisfied.” Id. (collecting cases).

At any given time, Defendant employs approximately 30 or more Laborers or Laborer

Foremen. (Compl. ¶17; Minor Dec. ¶10; Skaggs Dec. ¶8) In the two years prior to the date of

filing this Complaint through the present, Defendant has employed more than 50 individuals in

the position of Laborer or Laborer Foreman. (Compl. ¶79; Minor Dec. ¶11; Skaggs Dec. ¶9).

Thus, the putative class consists of at least 50 individuals, which satisfies the minimum threshold

in the Sixth Circuit. Saur, 203 F.R.D. at 286; Afro American Patrolmens League, 503 F. 2d at

298. The number of individuals in Plaintiffs’ proposed class, as well as the potential that

joinder is impracticable for those who are still employed with Defendant, weighs in favor of

finding that the putative class is sufficiently numerous to warrant class certification.

2. The Commonality Requirement

Fed. R. Civ. P. 23(a)(2) is satisfied where there are “questions of law or fact common to

the class.” “[T]he threshold for ‘commonality’ is not high.” Forbush v. J.C. Penny Co. Inc., 994

F.2d 1101, 1106 (5th Cir. 1993). “[T]here need be only a single issue common to all members

of the class,” the resolution of which “will advance the litigation.” In re American Medical


19

Systems, Inc., 75 F.3d 1069, 1080 (6th Cir. 1996); Sprague v. General Motors Corp.,133 F.3d

388, 397 (6th Cir. 1998). Here, numerous common questions exist, including:

Whether Defendant violated the OMFWSA by failing to compensate Laborers and

Laborer Foremen for time spent traveling from the Columbus shop to the jobsite, and

from the jobsite back to the Columbus shop;

Whether Defendant established its payroll policy, knowing the policy violated the law

and failed to properly compensate Laborers and Laborer Foremen for all hours worked in

a workweek in excess of 40 at an overtime premium;

Whether Defendant’s violations were knowing and willful;

What amount of unpaid overtime compensation is owed to Plaintiffs and the other

members of the class as a result of Defendant’s violation of the OMFWSA;

What amount of prejudgment interest is due to class members on their unpaid overtime

compensation which was unlawfully withheld;

(Complaint ¶84) Because only one issue need exist, the requirement in this case is

satisfied. Alkire v. Irving, 330 F. 3d 802, 820 (6th Cir. 20003) (citing Sprague, 133 F.3d at 397)

(“Although the rule refers to common questions of fact or law in the plural, there only needs to

be one common issue.”). The commonality element is satisfied as long as the class members

have “allegedly been affected by a general policy of the defendant, and the general policy is the

focus of the litigation.” Laichev, 269 F.R.D. at 640. Here, all Laborers and Laborer Foremen

have been affected by Defendant’s uniform policy of not paying them for time spent driving

between the shop and the jobsite.


20

Once a court has determined that there is at least one common issue of law and fact, the

presence of differences in the damages amounts sustained by individual class members will not

destroy class certification. Saur, 203 F.R.D. at 287 (citing Sterling v. Velsicol Chemical Corp.,

855 F.2d 1188, 1197 (6th Cir. 1988)). In Laichev, the court held that the commonality element

was met even though questions specific to each individual class member remained after the

defendant’s liability issue could be resolved. 269 F.R.D. at 640. In that case, the plaintiff

asserted that common issues were present, including the defendant’s failure to properly pay

overtime to class members and the unlawfulness of the defendant’s payroll practices. Id. The

defendant argued that a fact finder would have to make individual determinations for each

plaintiff, such that commonality was not met, including: “(1) how many hours he worked in each

week; (2) the number of hours actually recorded; (3) why the employee did not follow the

company's written policy; (4) whether defendant knew or should have known the employee was

working overtime; (5) what the employee did during each workday; and (6) the effect of the

difference on the employee's pay.” Id. The court rejected the defendant’s argument and held

that simply because individual inquiries remained as to each class member after the issue of

liability was resolved, did not destroy proper class certification. Id. See also Swigart, 288

F.R.D. at 184 (explaining that factual differences among the putative class members’ as to their

employment, such as the exact nature of their job duties, the location from which they worked,

and types of products they sold, did not defeat the “commonality” element).

Here, the putative class members—at least 50 Laborers and Laborer Foremen—have

been affected by Defendant’s “general policy.” The Laborers and Laborer Foremen are all


21

subjected to Defendant’s policy of refusing to pay Laborer and Laborer Foremen for time spent

traveling from the Columbus shop to the jobsite, and from the jobsite back to the shop. The

single policy affects all Laborer and Laborer Foremen—despite any differences in the Laborer

and Laborer Foremen’s exact job duties, travel time, or location of their jobsites. They are all

paid on an hourly basis, all regularly work in excess of 40 hours per week, and thus, are all

affected in the same manner by Defendant’s refusal to pay them overtime compensation for all

compensable travel time. (See Compl. ¶39, 41; Minor Dec. ¶¶14, 42-43; Skaggs Dec. ¶¶12,

40-41). Because the putative class members have all been affected by this general policy, which

“is the focus of the litigation,” this element is satisfied, making class certification appropriate.

See Laichev, 269 F.R.D. at 640.

3. The Typicality Requirement

Rule 23(a)(3) requires that the claims asserted by class representatives are typical of

those of the class members. Laichev, 269 F.R.D. at 640. A plaintiff’s claim is typical if it

“arises from the same event or practice or course of conduct that gives rise to the claims of other

class members, and [the] claims are based on the same legal theory.” Swigart, 288 F.R.D. at 185.

Typicality may exist where there is a very strong similarity of legal theories, even if substantial

factual distinctions exist between the named and unnamed class members. Id. (citing Alpern v.

UtiliCorp United, Inc., 84 F.3d 1525, 1540 (8th Cir. 1996)). The facts and claims of each class

member need not be identical to satisfy the element of typicality. Id. Further, the “typicality

requirement is liberally construed” and is generally satisfied when the commonality element has

been satisfied. Id. (citing Gaspar v. Linvatec Corp., 167 F.R.D. 51, 57 (N.D. Ill. 1996)).


22

The question the Court need ask is: Do the claims of the class representatives and the

putative class members arise from the same practice or course of conduct, and are the claims

based upon the same legal theory? See id. If so, the typicality requirement is generally satisfied

“irrespective of varying fact patters which underlie individual claims.” Id. (citing Laichev, 269

F.R.D. at 640-41). In this case, the claims of Plaintiffs Minor and Skaggs and of the putative

class members arise from a single practice—Defendant’s pay practice of denying Laborers and

Laborer Foremen compensation for the time spent driving from the Columbus shop to the jobsite

and from the jobsite back to the Columbus shop. Defendant’s pay policy is applied to all

Laborers and laborer Foremen, regardless of any individual differences in their job duties, their

travel time between the shop and the jobsite, and their work on the jobsites. (See Complaint ¶54).

The claims are based upon the same legal theories and the same legal questions must be resolved

in order to address the claims of the class representatives and the putative class. See Section A.2,

supra. Whether Defendant’s pay practice of denying compensation for this drive time is

unlawful is a question answerable on a class-wide basis. Because the named Plaintiffs’ claims

are typical of those of the class, this element is satisfied for purposes of granting class

certification.

4. Adequacy of Representation

The final requirement listed in Rule 23(a) requires the Court to determine whether “the

representative parties will fairly and adequately protect the interests of the class.” Swigart, 288

F.R.D. at 185 (citing Fed. R. Civ. P. 23(a)(4)). This is a two-step analysis: (1) do the class

representatives have common interests with unnamed members of the class?; and (2) does it


23

appear that the class representatives will vigorously prosecute the interests of the class through

qualified counsel? Id. at 185-186.

Here, both requirements are satisfied. First, Plaintiffs Minor and Skaggs have common

interests with the putative class.3 They are challenging the same unlawful withholding of

overtime compensation and are seeking the same relief as would the putative class members.

See, e.g., Swigart, 288 F.R.D. at 186 (citing Thomas v. SmithKline, 201 F.R.D. 386, 396 (E.D.

Pa. 2001)). Second, the proposed class representatives are ready, willing and able to fulfill their

duties. (See Notice of Consents, Doc. No. 1-1) Additionally, Plaintiffs’ counsel is well

qualified to handle this matter and prosecute the interests of the class. Plaintiffs’ counsel has

experience prosecuting wage and hour violations in class actions and collective actions in the

Southern District of Ohio. Plaintiffs’ counsel is able to dedicate the time and resources to

vigorously represent the interests of the name Plaintiffs and the putative class.

B. Plaintiffs Have Satisfied the Requirements of Rule 23(b), Permitting this

Court to Certify This Case as a Class Action.

Once the requirements of Fed. R. Civ. P. 23(a) have been satisfied, the Court will certify

the class if the action qualifies under any one of the three conditions set forth in Rule 23(b).

3 The Sixth Circuit has noted that in the employment context, “former employees have standing to

represent a class consisting of both current and past employees.” In re FedEx Ground Package Systems, Inc., 273

F.R.D. 424, 438 (N.D. Ind. 2012) (citing Cross v. National Trust Life Ins. Co., 553 F.2d 1026, 1030-1031 (6th Cir.

1977)).


24

Under Rule 23(b)(3), a class action may be maintained if “questions of law or fact common to

class members predominate over any questions affecting only individual members,” and that if a

“class action is superior to other available methods for fairly and efficiently adjudicating the

controversy.” Fed. R. Civ. P. 23(b)(3); Swigart, 288 F.R.D. at 186.

1. Common Questions of Law and Fact Predominate

First, common questions of law and fact predominate, the answers to which depend on

whether Defendant’s will be found to have violated the OMFWSA, making this appropriate for

class certification. Here, Defendant’s liability turns on whether Laborers and Laborer Foremen

should have been compensated for the time spent traveling between the shop and the jobsite, and

if so, whether this failure to compensate the Laborers and Laborer Foremen results in denying

them overtime compensation in violation of the OMFWSA for all hours worked over 40 per

workweek.

Questions of fact and law used in making this determination are common to all Laborer

and Laborer Foreman and include: Whether Laborers and Laborer Foremen worked more than

40 hours in a workweek; The exact nature of the Laborers’ and Laborer Foremen’s job duties;

Whether the time spent traveling from the shop to the jobsite, and from the jobsite to the shop is

compensable time—i.e., whether the travel time was “integral and indispensable” to the


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Laborers’ and Laborer Foremen’s principal activities;4

Whether Defendant established its

payroll policy, knowing the policy violated the law; What amount of unpaid overtime

compensation owed to Laborers and Laborer Foremen if Defendant’s policy violated the

OMFWSA; and What amount of prejudgment interest is due to class members on their unpaid

overtime compensation which was unlawfully withheld.

These questions of law and fact are common to the entire class of Laborer and Laborer

Foremen. These questions predominate—as Defendants’ liability (and the extent to which they

are liable if so) depends entirely on the answers to the questions. Despite individual differences

in Laborers’ and Laborer Foremen’s damage calculations, common questions of law and fact

predominate, making class certification appropriate. Swigart, 288 F.R.D. at 186.

2. A Class Action is a Superior Method of Adjudication

Once the first element is satisfied, the Court must determine whether a class action is a

superior method of adjudicating the case. Rule 23(b) provides a non-exhaustive list of factors to

consider:

(A) the interest of members of the class in individually controlling the prosecution

or defense of separate actions; (B) the extent and nature of any litigation

4 Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513, 188 L. Ed. 2d 374 (2014) (noting that if the

uncompensated activity in question (i.e. – travel time) is not the employee’s principal activity, the Court then

examines whether the activity is “integral and indispensable” to the principal activity such that it is compensable

work).


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concerning the controversy already commenced by or against members of the

class; (C) the desirability or undesirability of concentrating the litigation of the

claims in the particular forum; (D) the difficulties likely to be encountered in the

management of a class action.

Fed.R.Civ.P. 23(b)(3)(A)-(D).

Here, each putative class member has sustained a loss and thus has an interest in pursuing

the litigation. However, the cost of pursuing the matter individually substantially impairs the

individual class members’ ability to do so on a case-by-case basis. Laichev, 269 F.R.D. at 642.

See also Tedrow v. Cowles, 2007 U.S. Dist. LEXIS 67391, *26 (S.D. Ohio Sept. 12, 2007) (“As

Plaintiffs convincingly argue, the majority of putative class members would not likely have their

day in court on these claims if a class is not certified because of a lack of sophistication, lack of

resources, lack of representation and similar barriers.”). It would be extremely inefficient to

hold individual trials where the same issues were presented, supported by almost identical

evidence, differing only as to each Laborer and Laborer Foremen’s individual damages. See

Laichev, 269 F.R.D. at 642.

Additionally, no other litigation concerning the controversy at hand has been commenced

by or against the putative class members. The current forum in which this litigation lies is

suitable because the named Plaintiffs reside in the Southern District of Ohio, and Defendant is

headquartered and conducts business from Marietta, Ohio, located in the Southern District of

Ohio. Thus, it is suitable to concentrate the litigation in this forum.

Finally, denial of Plaintiffs’ motion would discourage individual class members from

initiating litigation alleging the same legal violations because of the difficulties inherent in the


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time, expense, and complexities of this litigation. These are the circumstances under which a

Rule 23(b)(3) class could properly be certified by the Court.

V. PLAINTIFF’S PROPOSED CLASS NOTICE

A. The Court Should Approve Plaintiffs’ Proposed Notice of Collective Action

and Class Action Lawsuit and Authorize Them to Send the Notice by

Regular Mail and Electronic Mail.

Plaintiffs have submitted a proposed Notice of Collective Action and Class Action

Lawsuit (Exhibit 1) for this Court’s review. Plaintiffs request that the Court authorize them to

send the Proposed Notice to all individuals in Plaintiffs’ proposed class. The Proposed Notice is

“timely, accurate, and informative,” and therefore should be approved. Hoffmann–La Roche Inc.

v. Sperling, 493 U.S. 165, 172, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). Specifically, Plaintiffs

request that the Court grant them permission to disperse notice in two ways: (1) by ordinary

mail, and (2) by electronic mail (to former employees only).

Accurate and timely notice regarding the pendency of the action “promotes judicial

economy because it discourages class members from filing numerous identical suits and instead

allows them to pursue their claims in one case where the same issues of law and fact are already

being addressed.” Swigart, 276 F.R.D. at 214 (citing Hoffmann–La Roche, 493 U.S. at 170).

Plaintiffs request the ability to send the Court-authorized notice to current and former putative

class members by regular mail, and to former employees by electronic mail. Last known

addresses for former employees are far less accurate, and using electronic mail to disperse notice

will increase the likelihood that putative class members will receive notice. This method has

been approved by this Court on numerous occasions. See e.g., Swigart, 276 F.R.D. at 215 (“The


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Court finds that permitting transmission by mail, and additionally by email to former Fifth Third

MLOs only, both appropriately safeguards the privacy of individuals not currently a party to the

case and helps ensure that all potential plaintiffs receive notice of their right to join this

lawsuit.”); Struck v. PNC Bank N.A., 2013 U.S. Dist. LEXIS 19444, *21 (S.D. Ohio Feb. 13,

2013) (rejecting defendant’s argument that sending notice by electronic mail to former

employees would invade their privacy, and holding that ensuring former employees receive

notice of their rights to join the lawsuit outweighs any privacy concerns); Lutz v. Huntington

Bancshares, Inc., 2013 U.S. Dist. LEXIS 56477, *19-20 (S.D. Ohio Apr. 19, 2013) (noting that

“[b]y allowing e-mail notice to former employees now, the Court hopes to avoid the added step

of having to resend notice in the event that a former employee’s last known home address proves

to be inaccurate.”); Lemmon v. Harry & David Operations, 2016 U.S. Dist. LEXIS 11810, at

*20-21 (S.D. Ohio Jan. 20, 2016) (finding the approach taken in Lutz and Wolfram warranted

and approving the sending of notice to potential opt-in former employees by electronic mail).

Additionally, the Court also should permit Plaintiffs to send a Court-authorized reminder

email to all proposed putative class members half-way through the notice period. See Exhibit C,

attached hereto (Plaintiff’s Proposed Reminder Email). It is well-documented that people often

disregard collective action notices. See Andrew C. Brunsden, Hybrid Class Actions, Dual

Certification, & Wage Law Enforcement in the Federal Courts, 29 Berkeley J. Emp. & Lab. L.

269, 295 (2008). “Given that notice under the FLSA is intended to inform as many potential

plaintiffs as possible of the collective action and their right to opt-in . . . a reminder notice is

appropriate.” Morris v. Lettire Constr. Corp., 896 F. Supp. 2d 265, 275 (S.D.N.Y. 2012).


29

Reminder mailings to potential opt-ins who have not responded to an initial mailing are common

and cause defendants no prejudice. See, e.g., Benedict v. Hewlett-Packard Co., 2014 U.S. Dist.

LEXIS 18594, *62 (N.D. Cal. Feb. 13, 2014) (approving reminder notice); Chhab v. Darden

Rests., Inc., 2013 U.S. Dist. LEXIS 135926, *15 (S.D.N.Y. Sept. 19, 2013) (approving reminder

notice); Harris v. Vector Mktg. Corp., 716 F. Supp. 2d 835, 847 (N.D. Cal. 2010) (approving

reminder postcard); Adams v. Inter-Con Sec. Sys., Inc., 2007 U.S. Dist. LEXIS 83147, at *14

(N.D. Cal. Oct. 30, 2007) (ordering the mailing of a “reminder card” to all class members who

did not submit a claim form 14 days before the end of the claims period).

B. The Court Should Approve Plaintiffs’ Request to Send Notice to Laborers

and Laborer Foremen Employed by Defendant at any Time Within the

Three Years Preceding the Commencement of this Action.

Plaintiffs’ FLSA claims are governed by a two-year statute of limitations, which is

extended to three years when the statutory violation was “willful.” See 29 U.S.C. § 255(a). In

contrast, Ohio law provides for a two-year statute of limitations for claims based upon unpaid

overtime compensation. Claeys v. Gandalf Ltd., 303 F. Supp. 2d 890, 893 (S.D. Ohio 2004).

Although Plaintiff’s claims under the OMFWSA is limited to a two-year statute of limitations,

Plaintiff has set forth sufficient evidence at this FLSA certification stage that Defendant’s FLSA

violation was willful. Accordingly, the Court should authorize the sending of notice to current

and former Laborer and Laborer Foremen who were employed with Defendant between October

19, 2013 and the final disposition of this case—in order to afford them the opportunity to opt-in

to Plaintiffs’ proposed FLSA collective class.


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An FLSA violation is “willful” if the employer either knew or showed reckless disregard

for whether its conduct was prohibited by the Act. McLaughlin v. Richland Shoe Co., 486 U.S.

128, 133 (1988). Plaintiffs alleges that Defendant’s violation was a willful one, in that

Defendant was aware that Laborers and Laborer Foremen should have been paid overtime

compensation for all hours worked in excess of 40 hours per week—including time spent driving

from the Columbus shop to the jobsite, and from the jobsite back to the shop. Defendant knew

or should have known that Laborer and Laborer Foremen’s time spent driving from the

Columbus shop to the jobsite, and from the jobsite back to the shop was compensable time, and

that by denying Laborer and Laborer Foremen compensation for this drive time, Defendant was

unlawfully failing to pay Laborer and Laborer Foremen overtime compensation for all hours

worked in a workweek in excess of 40. (Compl. ¶¶72-75; Minor Dec. ¶¶43-51). Plaintiff

Minor specifically voiced his complaints regarding Defendant’s pay practices on two separate

occasions—once to Defendant’s President and CEO, Ms., and once to Plaintiff Minor’s

supervisor, Mr. Samuel Thompson. (Compl. ¶55; Minor Dec. ¶¶44-51) Ms. Elswick informed

Plaintiff that she would “look into it,” but nothing was ever done to address Plaintiff Minor’s

concerns. (Compl. ¶¶56, 62; Minor Dec. ¶48) Mr. Thompson did not address the issue either,

and instead, criticized Plaintiff Minor for addressing the issue of compensation for drive-time

with Ms. Elswick. (Compl. ¶58; Minor Dec. ¶49) Defendant certainly demonstrated reckless

disregard for the matter of whether its conduct was prohibited by the FLSA. McLaughlin, 486

U.S. at 133.


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VI. CONCLUSION

For the reasons described above, Plaintiffs respectfully request that the Court grant the

instant motion and enter an order: (1) Conditionally certifying this action as a collective action

under the FLSA; (2) Certifying this action as a class action under Fed. R. Civ. P. 23; and (3)

Designating Plaintiff’s selection of counsel, Mansell Law, LLC, as Class Counsel, and

authorizing Plaintiffs to send notices of this lawsuit by way of the Proposed Notice of Collective

Action and Class Action (Exhibit A).

Respectfully submitted,

/s/Greg Mansell

Greg R. Mansell (0085197)

([email protected])

Carrie J. Dyer (0090539)

([email protected])

Mansell Law, LLC

1457 S. High St.

Columbus, OH 43207

Ph: (614) 610-4134

Fax: (513) 826-9311

Counsel for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that on November 7, 2016, a copy of the foregoing document was filed

electronically. Notice and a copy of this filing was sent to Counsel of Record for Defendant

Twin Rivers Construction, Inc. by electronic mail this 7th day of November 2016.

/s/ Greg R. Mansell

Gregory R. Mansell (0085197)


in the united states district court for the...

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