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Volz v. Provider Plus, Inc.

United States District Court, E.D. Missouri, Eastern Division

July 14, 2015

DOUG VOLZ, et al., Plaintiffs,
v.
PROVIDER PLUS, INC., and JEFF SERAFIN, Defendants.

MEMORANDUM AND ORDER

THOMAS C. MUMMERT, III, Magistrate Judge.

This action is before the Court on Plaintiffs's motion for conditional class certification pursuant to § 216(b) of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201-219. [Doc. 24] Specifically, Plaintiffs request an order (1) conditionally certifying a class of current and former "on-call'" employees of Provider Plus, Inc.; (2) directing Provider Plus to provide counsel a list of current and former "on-call" employees; (3) approving the proposed notice submitted with the motion; and (4) ordering Provider Plus to post notice of this action by all time clocks and provide consent forms. Without waiving their right to later oppose certification, Provider Plus, Inc., and Jeff Serafin (Defendants) consent to the conditional certification but take issue with various specifics of the proposed notice.[1]

Having carefully reviewed the parties's respective positions, the Court finds the following language in the Notice of Collective Action Against Provider Plus, Inc. and Jeff Serafin[2] to be appropriate.

To: Plaintiffs wish to direct this portion of the Notice to "[a]ll current and former Provider Plus, Inc., employees who worked for Provider Plus, Inc., between May 17, 2012 and the present." (Pls.' Ex. A, ECF No. 32-1.[3]) Defendants propose the following wording: "All current and former Provider Plus, Inc., employees who worked for Provider Plus, Inc., as a delivery technician or respiratory therapist between ____, 2012, and the present." (Defs.' Ex. 2, ECF No. 31-2 (emphasis added)).

In their initial Notice, Plaintiffs defined the employees at issue as "on call" employees. (Pls.' Ex. G, ECF No. 25-7.) Defendants argue that there are but two classes of such employees, delivery technicians and respiratory therapists, and these two classes have separate responsibilities in relevant respects. Plaintiffs counter that Defendants' wording will cause confusion, resulting in fewer people joining the action. Plaintiffs do not disagree with Defendants' position that there are only two classes of "on call" employees, but they do note that various Plaintiffs who have already opted-in describe themselves as "home medical service technicians" rather than delivery technicians.

Four affidavits submitted by Plaintiffs in support of their motion are from former employees who identify themselves as on call employees and as either respiratory therapists or home medical service technicians. (See Pls. Exs. A-D, ECF Nol. 25-1 to 25-4.) The only confusion seems to be in the title of one of the two classes, i.e., home medical service technician or delivery technician. This is easily resolved. The notice shall be directed to "All current and former Provider Plus, Inc., employees who worked for Provider Plus, Inc., as a delivery technician, sometimes referred to as home medical service technician, or respiratory therapist...."

The parties also disagree about the starting date of employment for the class members. Plaintiffs advocate for May 17, 2012 - three years before they filed their pending motion on May 17, 2015. Defendants counter that the relevant date is three years before the date on which the Court certifies the class.[4] Under Local Rule 4.01 of the Eastern District of Missouri, a motion is considered at issue fourteen days after it is filed. Thus, the pending motion, without considering any requests for additional times, would be at issue on May 31, 2015. The Court finds that the notice should read "... between May 31, 2012 and the present."

From: Plaintiffs's proposed notice includes counsel's email address and identifies him as "Attorney for Plaintiffs and the On Call Class." Defendants notice would strike the email address and identify counsel only as "Attorney for Plaintiffs."

Clearly, the use of email to address written inquiries is not unusual. The email address shall remain. See e.g., Denney v. Lester's, LLC, 2012 WL 3854466, *7 (E.D. Mo. Sept. 5, 2012) (approving notice that included attorneys's email addresses and website in addition to street address and telephone numbers); Greenwald v. Phillips Home Furnishings, Inc., No. 4:08cv1128 CDP (E.D. Mo. Feb. 8, 2009) (same).

What shall not remain is the identification of counsel as Attorney for the On Call Class. Information in the notice itself clearly identifies counsel as representing current Plaintiffs and those potential class members who timely consent to join the lawsuit.[5] This is sufficient.

Re: This section includes bold, all capital letters. The parties disagree on the wording. The Court finds the following wording to be appropriate.

This notice is for the sole purpose of determining the identity of those persons who wish to be involved in this lawsuit. The United States District Court for the Eastern District of Missouri expresses no opinion regarding the merits of Plaintiffs's claims or Defendants's defenses. There is no assurance at this time that any relief will be granted, nor if granted, the nature and amount of relief.

See Huang, 248 F.R.D. at 229 (requiring similar wording in FLSA notice).

Notice: Opt-In. The parties agree on the first of the two sentences in this paragraph. Plaintiffs wish to add a second sentence informing the recipient that he or she does not have to pay anything to join the lawsuit. Defendants wish not to. The question of informing the potential class members of the possibility of being assessed costs is ...


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