The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
The Court has before it Plaintiff's Motion for Conditional Certification of An FLSA Collective Action (Dkt. 21), and Defendant's Motion to Strike Declarations Submitted in Support of Plaintiff's Motion for Conditional Certification (Dkt. 34.) The Court has determined that the motions are suitable for disposition without oral argument.
The FLSA provides a cause of action for an employee against an employer who fails to pay overtime wages. 29 U.S.C. § 207(a), (o). An employee may sue "for and in behalf of himself . . . and other employees similarly situated." Id. § 216(b). This is known as a collective action, and proceeds on an opt-in basis. Id.; see also Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989). The district court may authorize named plaintiffs in an FLSA collective action to send notice to all potential plaintiffs to facilitate this process. Does I through XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1064 (9th Cir. 2000). The district court has discretion whether certification of a § 216(b) collective action is appropriate. Edwards v. City of Long Beach, 467 F. Supp. 2d 986, 989 (C.D. Cal. 2006) (Citing Leuthold v. Destination America, Inc., 224 F.R.D. 462, 466 (N.D.Cal. 2004).
Although the Ninth Circuit has not articulated a single standard to guide the "similarly situated" analysis, a majority of courts adopt a two tiered approach. See, e.g., Khadera v. ABM Indus. Inc., No. C08-0417 RSM (W.D. Wash. Feb. 19, 2010); Colson v. Avnet, Inc., No. 09-603-PHX-MHM (D. Ariz. Jan. 27, 2010); Davis v. Westgate Planet Hollywood Las Vegas, LLC, No. 2:08-cv-00722-RCJ-PAL (D. Nev. Jan. 12, 2009); Goudie v. Cable Commc'ns, Inc., No. 08-CV-507-AC (D. Or. Oct. 14, 2008); Hoffman v. Securitas Sec. Servs., No. CV07-502-S-EJL (D. Idaho Aug. 27, 2008); Edwards, 467 F. Supp. 2d at 990.
Under the two-step approach, "the first step is for the court to decide, based primarily on the pleadings and any affidavits submitted by the parties, whether the potential class should be given notice of the action." Edwards, 467 F. Supp. 2d at 990 (internal quotation marks omitted). Given the lack of discovery and limited evidence available to the court at this early stage in the proceedings, "this determination is usually made under a fairly lenient standard and typically results in conditional class certification." Id. (internal quotation marks omitted). Indeed, "[p]laintiff need not show that his position is or was identical to the putative class members' positions; a class may be certified under the FLSA if the named plaintiff can show that his position was or is similar to those of the absent class members." Id. (quoting Freeman v. Wal-Mart Stores, Inc., 256 F. Supp. 2d 941, 945 (W.D. Ark. 2003)). Unsupported assertions of widespread violations do not fulfill Plaintiff's burden though. Id. Ultimately, all the plaintiff needs to show, "is that some identifiable factual or legal nexus binds together the various claims of the class members in a way that hearing the claims together promotes judicial efficiency and comports with the broad remedial policies underlying the FLSA." Wertheim v. Arizona, 1993 WL 603552, at *1 (D. Ariz. Sept. 30, 1993).
The second phase of the two-step approach occurs once discovery is complete and the case is ready for trial. At that time, the party opposing § 216(b) collective action treatment may move to decertify the class. Id. at 990 n.1.
1. Conditional Certification
Plaintiff Karen Fenn alleges that she and other past and present customer service representatives ("CSRs") at Hewlett-Packard ("HP") were not paid for all hours worked beyond forty hours per week. In a nutshell, Fenn complains that HP required CSRs to arrive early and leave late so they could load and shut down computer applications. Fenn contends that CSRs were required to spend this extra time on the job without pay.
In support of her complaint, Fenn offers five declarations, including her own. Each declarant states that he or she worked for HP at one of HP's call centers in the United States (2 in Idaho, 1 in Iowa, 1 in Colorado, and 1 in Michigan). Fenn, Shaul, Bishop, Buonanni,and Bryant Declarations, Dkts. 21-3 -- 21-7. Each declaration states essentially the same thing with respect to unpaid work -- CSRs were required to work extra time loading and shutting down their computer applications without pay. Id. Each declarant makes the general assertion that HP told them to work the extra time without pay. Id. Each declarant then explains that many other CSRs worked at their respective locations, ranging from 85-1500 per location.
HP responds, in part, by producing the declaration of HP's compensation manager, Jennifer Miner. Miner states that HP "maintains information on timecards which state, among other things, that 'non-exempt HP employees are paid for actual hours worked each pay period.'" Miner Decl., ¶ 5, Ex. 1 at p. 4, Dkt. 27-2. Miner goes on to state that HP's global policies do not detail the minutiae of time recording for each employee because HP is a large global corporation with diverse business activities. Id. at ¶ 6. Miner states that HP uses a decentralized time keeping policy which relies upon local and business group level management for implementation. Id.
HP also produced the declaration of Lori Stanfield, an Operations Manager for HP in Boise, Idaho. Stanfield states that she is, and was during the time-frame of the allegations in this case, responsible for overseeing the pre-sales program where plaintiff Fenn worked. Stanfiled Decl., ¶ 3. Fenn's supervisor reported to Stanfield. Id. Stanfield states that individual team supervisors are responsible for reminding their agents about proper treatment of time worked. Id. at ¶ 6. Stanfield notes that soon after HP acquired Electronic Data Systems, the predecessor company where Fenn worked, Stanfield sent an email to all Boise supervisors explaining that "employees need to be paid for the time they spend booting up, reading emails, signing up for OT, and shutting down." Id. at ¶ 7, Attachment 1. Stanfield also declares that she sent an email of "talking points" to the supervisors regarding the timekeeping procedures. Id. at ¶ 8. Attached to the email was a memo. Id., Attachment 2. The body of the memo states that "all working time must be paid time." Id. The memo details how HP wants to ensure that employees are properly paid, and it gives some "paid v. unpaid" scenarios. Id. At the top of the memo, it states "Do Not Distribute," but Fenn's direct supervisor, Marc Militello, states that he instructed his team that the time used to start up their computer tools and applications and prepare for work should be recorded as paid time. Militello Decl., ¶ 6. HP also suggests that there are differences among sites, supervisors and business groups with respect to shift times, required duties, etc.
Under these circumstances, the Court cannot make a determination whether conditional certification of a § 216(b) collective action is warranted. Specifically, the Court cannot determine whether Plaintiff's position was similar to those of the absent class members. The Court cannot determine whether some identifiable factual or legal nexus binds together the various ...