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Jackson v. Synergies3 Tec Services, LLC

United States District Court, E.D. Missouri

October 29, 2019

CLINTON JACKSON and JAMES, THOMAS, individually and on behalf of all other similarly situated, Plaintiffs,



         This matter comes before the Court on Plaintiffs' Motion for Conditional Certification and Court-Authorized Notice [45]. The Court grants Plaintiffs' Motion for Conditional Certification. The Court grants in part and denies in part Plaintiffs' Motion for Court-Authorized Notice.

         I. BACKGROUND

         On 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.[1] Doc. 1. According to the operative Complaint, [2] 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.

         Plaintiffs 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, ” basis.

         On 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 litigation.

         In 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.


         Under 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)).

         When 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] claim.” Id.

         “At 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 omitted).


         A. Conditional Certification

         The 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).

         Plaintiffs 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).

         The 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.[3] 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 independent contractors.

         1. Synergies3's Arguments Against Conditional Certification

         Contrary 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, ...

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