United States District Court, E.D. Missouri
CLINTON JACKSON and JAMES, THOMAS, individually and on behalf of all other similarly situated, Plaintiffs,
SYNERGIES3 TEC SERVICES, LLC, Defendant.
MEMORANDUM AND ORDER
STEPHEN R. CLARK, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiffs' Motion for
Conditional Certification and Court-Authorized Notice .
The Court grants Plaintiffs' Motion for Conditional
Certification. The Court grants in part and denies in part
Plaintiffs' Motion for Court-Authorized Notice.
February 4, 2019, Plaintiffs Clinton Jackson and James
Thomas, individually and on behalf of all others similarly
situated, filed a Complaint in this Court under the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. §
201 et seq., against Defendant Synergies3 Tec Services, LLC
to recover unpaid overtime compensation. Doc. 1. According
to the operative Complaint,  Synergies3 is a satellite
installation provider for AT&T (DirecTV), registered to
conduct business in Missouri, Illinois, and other states
across the country. Plaintiffs allege that Synergies3
contracts with installation technicians to provide satellite
installation and maintenance services for DirecTV and
DirecTV's customers. Jackson and Thomas both allege that
they worked for Synergies3 as installation technicians.
allege that, although Synergies3 classified Plaintiffs and
other similarly-situated installation technicians as
independent contractors, Synergies3's installation
technicians were and are, in fact, employees under federal
and state law. Plaintiffs contend that Synergies3
deliberately misclassified installation technicians as
independent contractors to avoid paying overtime wages.
Plaintiffs further allege that Synergies3 unlawfully denied
them overtime pay, even when they worked more than 40 hours
per week, through Synergies3's practice of paying
installation technicians on a per-job, “piece-rate,
April 23, 2019, Plaintiffs filed a motion, pursuant to §
216(b) of the FLSA, to conditionally certify a collective
class action of all installation technicians who worked for
Synergies3 and whom Synergies3 classified as
“independent contractors" at any time within three
years before Plaintiffs filed their Complaint. Doc. 45. In
addition, Plaintiffs seek approval of a form of notice to
send to Syngergies3's past and present employees to
provide them the opportunity to opt in as plaintiffs in this
support of their motion for conditional certification,
Plaintiffs offer seven similar declarations from individuals
who attest they worked for Synergies3 as installation
technicians and were classified as independent contractors.
The declarants worked for Synergies3 in different states and
varied in the number of hours they typically worked each
week, but otherwise the seven declarations contain
essentially identical assertions. All declarants attest that
Synergies3 assigned the jobs they were to complete each
workday, and that Synergies3 set the methods and standards
for their work. The declarants attest that Synergies3 did not
give them the option to refuse jobs once assigned by
Synergies3, and that they had to request time off at least
two weeks in advance. The declarants state that Synergies3
supplied the equipment they used as installation technicians.
All of the declarants attest that Synergies3 paid them on a
piece-rate basis set by Synergies3, with no ability to
negotiate pricing with the customer. Finally, all declarants
attest Synergies3 did not pay them overtime wages, even
though they typically worked more than forty hours per week.
the FLSA, plaintiffs may sue for failure to pay overtime and
other violations of the statute on behalf of
“themselves and other employees similarly
situated.” 29 U.S.C. § 216(b). The statute does
not define “similarly situated.” The Eighth
Circuit held that plaintiffs may be similarly situated if
“they suffer from a single, FLSA-violating policy. .
.” Bouaphakeo v. Tyson Foods, Inc., 765 F.3d
791, 796 (8th Cir. 2014), aff'd and remanded,
136 S.Ct. 1036 (2016) (quoting O'Brien v. Ed Donnelly
Enters., Inc., 575 F.3d 567, 585 (6th Cir. 2009)). When
making this determination, the Court may consider “(1)
disparate factual and employment settings of the individual
plaintiffs; (2) the various defenses available to defendant
which appear to be individual to each plaintiff; [and] (3)
fairness and procedural considerations.” Id.
(quoting Thiessen v. Gen. Elec. Capital Corp., 267
F.3d 1095, 1103 (10th Cir. 2001)).
applying the FLSA to a potential group of plaintiffs,
district courts in this circuit apply a two-step analysis.
Getchman v. Pyramid Consulting, Inc., No. 4:16 CV
1208 CDP, 2017 WL 713034, at *4 (E.D. Mo. Feb. 23, 2017)
(collecting cases). In the first step, the plaintiff moves
for conditional certification “for notice purposes at
an early stage of the litigation.” Id. In the
second step, the court determines, after the close of
discovery, whether the plaintiffs are actually similarly
situated. Id. The plaintiffs' burden for the
first step “is not onerous.” Id. (citing
Kautsch v. Premier Comm'ns, 504 F.Supp.2d 685,
688 (W.D. Mo. 2007)). Plaintiffs need only provide
“substantial allegations that the putative class
members were together the victims of a single decision,
policy or plan.” Id. (quoting Davis v.
Novastar Mortgage, Inc., 408 F.Supp.2d 811 (W.D. Mo.
2005)). Granted, plaintiffs cannot meet their burden by
providing “[u]nsupported assertions that FLSA
violations were widespread, ” or assertions “not
based on personal knowledge.” Haynes v. Singer,
Co., 696 F.2d 884, 887 (11th Cir.1983); Settles v.
Gen. Elec., No. 12-00602-CV-W-BP, 2013 WL 12143084, at
*2 (W.D. Mo. Feb. 19, 2013). Instead, plaintiffs must make a
“modest factual showing”, Kautsch, 504
F.Supp.2d at 690, sufficient to “establish a
colorable basis for their claim that a class of similarly
situated plaintiffs exist.” McCallister v. First
Banks, Inc., No. 4:13CV561 HEA, 2014 WL 988448, at *2
(E.D. Mo. Mar. 13, 2014). “A colorable basis means that
[plaintiffs] must come forward with something more than the
mere averments in [the] complaint in support of [their]
first-stage certification the court exercises its discretion
to determine whether a collective action is appropriate, but
makes no credibility determinations or findings of fact with
respect to contrary evidence presented by the parties at this
initial stage.” Davenport v. Charter Commc'ns,
LLC, No. 4:12CV0007 AGF, 2014 WL 1272783, at *4 (E.D.
Mo. Mar. 27, 2014) (internal citations omitted). “Once
the Court conditionally certifies the class, potential class
members are given notice and the opportunity to
opt-in.” Dernovish v. AT & T Operations,
Inc., No. 09-0015-CV-W-ODS, 2010 WL 143692, at *1 (W.D.
Mo. Jan. 12, 2010) (internal quotations and citation
Court finds that Plaintiffs provided substantial allegations
that the putative class members were together victims of a
common policy or plan. Plaintiffs have adequately alleged
that, despite their classification by Synergies3 as
“independent contractors, ” Plaintiffs and the
other installation technicians they seek to represent were in
fact employees for purposes of the FLSA. See Fair v.
Communications Unlimited, Inc., No. 4:17CV02391 SRC,
2019 WL 4695942, at *5 (E.D. Mo. Sept. 26, 2019)
(conditionally certifying collective action involving
technicians classified as independent contractors);
Putman v. Galaxy 1 Mktg., Inc., 276 F.R.D. 264,
274-275 (S.D. Iowa Aug. 23, 2011) (conditionally certifying
collective action involving satellite installation workers
who were classified as independent contractors); Edwards
v. Multiband Corp., No. CIV. 10-2826 MJD/JJK, 2011 WL
117232, at *4 (D. Minn. Jan. 13, 2011) (conditionally
certifying collective action involving DirecTV installation
technicians classified as independent contractors).
allege that Synergies3 misclassified installation technicians
as independent contractors to avoid paying overtime wages,
even though Plaintiffs and other members of the putative
class were, in fact, Synergies3's employees. Doc. 49,
¶¶ 20-21. Plaintiffs allege that the putative class
worked exclusively for Synergies3 on a full-time and
continuing basis. Id. at ¶ 23. Plaintiffs
further allege that the putative class was subject to
Synergies3's direction and control as to the manner in
which they performed their work. Id. at ¶ 24.
Finally, Plaintiffs allege that Synergies3 set putative class
members' schedules. Id. at ¶ 24. These
averments adequately allege that Plaintiffs and other
similarly-situated installation technicians are, in fact,
Synergies3's employees. See Thornton v. Mainline
Commc'ns, LLC, 157 F.Supp.3d 844, 847-48 (E.D. Mo.
2016) (discussing relevant factors).
Court further finds that Plaintiffs have presented sufficient
evidence to establish a “colorable basis” for
conditional certification. McCallister, 2014 WL
988448, at *2 (“Conditional certification is
appropriate … when the plaintiffs have established a
colorable basis for their claim that a class of similarly
situated plaintiffs exist.”). The declarations from
seven installation technicians who worked for Synergies3 in
four different states-each stating that they Synergies3 paid
them by piece-rate, classified them as independent
contractors, and did not pay them for overtime hours
worked-meet the required standard. The declarants describe
essentially identical treatment in terms of how Synergies3
managed their work and structured their pay. Additionally,
the declarants identify other installation technicians whom
Synergies3 treated similarly. Based on this evidence, the Court
finds that Plaintiffs have established a colorable basis for
their claim that Synergies3 has a company-wide policy or
practice of misclassifying installation technicians as
Synergies3's Arguments Against Conditional
to Synergies3's arguments, Plaintiffs did not fail to
provide any evidence of a company-wide policy. See Wacker
v. Personal Touch Home Care, Inc., No. 4:08CV93 CDP,
2008 WL 4838146, at *4 (E.D. Mo. Nov. 6, 2008) (holding that
company-wide certification was inappropriate where plaintiff
offered a single affidavit from employee who worked in a
single state). Plaintiffs have submitted evidence that
Synergies3 treated numerous installation technicians across
multiple states in precisely the same way, which provides a
colorable basis for Plaintiffs' claim that their common
treatment was the result of a common policy. See Cox v.
Gordmans Stores, Inc., No. 4:16CV219 RLW, 2016 WL
6962508, at *3 (E.D. Mo. Nov. 28, ...