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Court certifies a class of employees based on the same construction site




By Laura Mallory

Two construction companies worked on the construction of a Wal-Mart store in Florida.  A complaint was filed by four construction laborers who performed work at the Wal-Mart construction site.  The plaintiffs alleged that they were not properly paid overtime, and at certain points during their employment, they did not receive compensation whatsoever. Plaintiffs filed a motion seeking to conditionally certify a class of individuals and facilitate notice to other construction workers that performed work at the construction site.  Specifically, the plaintiffs requested notice be given to all construction laborers who performed work on the same construction project during the last three years.  The defendants, two construction companies, opposed the motion and argued the plaintiffs were not “similarly situated.”  One of the construction companies also argued that the request for conditional certification was too broad and should be limited to only those laborers employed by the other construction company. 

Fair Labor Standards Act

Under the Fair Labor Standards Act, a plaintiff may bring an action on behalf of “similarly situated” persons.  A plaintiff must request the court certify a class and issue notice to others.  In order to do so, the court must first determine whether there are other employees who are “similarly situated” with respect to their job requirements and pay provisions.  Courts engage in a two-tiered approach when determining whether a plaintiff has demonstrated the existence of a similarly situated class.  At the first tier, the court makes a decision whether notice of the lawsuit should be given to potential class members.  This determination is usually based on the pleadings and any affidavits that are submitted.  If granted, the court uses the term “conditionally certified” and notice is then given to other potential plaintiffs.  Once given notice, an employee does not become a party to an action unless he or she consents to do so in writing.  

The first tier employs a fairly lenient standard and requires the plaintiff only show a reasonable basis for his claim and that there are other similarly situated employees.  The rationale for leniency is because this determination occurs before the parties have engaged in extensive discovery and have not yet been afforded a chance to collect their best evidence. The second tier determination occurs later, when the court has more information to base its decision.  At that time, the court can decertify a class or permit the entire class of opt-in plaintiffs to proceed to trial.   

Here, plaintiffs’ motion to certify a class fell within the first tier and therefore the court employed the mere lenient standard.   While one construction company asserted the plaintiffs are employed by its co-defendant, the plaintiffs provided sworn statements that they were employees of both companies and asserted a joint employment theory.  In proving there are other similarly situated employees, the plaintiffs assert they were all construction laborers at the same location, for the same time period and were subject to the same unlawful policies.  The court agreed and concluded the plaintiffs were similarly situated to one another and permitted notice be issued to other employees working at the Wal-Mart construction site.



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