Plaintiff in FLSA Class Action Must Make “Some Factual Showing” that Similarly-Situated Requirement is met in order to Obtain Conditional Certification of Class Action Treatment Delaware Federal Court Holds
Plaintiff filed a labor law class action against TruGreen – a lawn and landscaping company that hires non-immigrants for seasonal work under the federal H-2B visa program – alleging violations of the federal Fair Labor Standards Act (FLSA) and various state law claims. Villanueve-Bazaldua v. TruGreen Ltd. Partners, 479 F.Supp.2d 411, 413 (D. Del. 2007). Plaintiff moved to conditionally certify a class action; defense attorneys objected to class certification on the ground that plaintiff was not “similarly situated” to the putative class members and that, in any event, the company was not legally required to reimburse the expenses underlying the class action claims. The district court agreed with the defense and refused to certify an FLSA class action.
The class action complaint alleged that he was “recruited” in Mexico and that TruGreen promised to pay him $11.34 per regular hour and $17.01 per overtime hour to work for the company, and that in reliance on these promises, plaintiff incurred the expense of obtaining an H-2B visa and of traveling to and from the U.S. TruGreen, at 413. “These expenses included the cost of obtaining a Mexican passport, a $100 visa application fee, a $100 visa issuance fee, a $6 border crossing fee, a $155 administrative fee paid to TruGreen’s agent for processing the visa paperwork, and transportation expenses from the point of recruitment to the place of work in the United States.” Id. According to the class action allegations, these expenses constituted “de facto deductions from the first and last weeks of their wages, causing them to earn less than the wages required by the FLSA.” Id., at 413-14. Plaintiff argued that class action treatment was appropriate because Arriaga v. Florida Pacific Farms, 305 F.3d 1228 (11th Cir. 2002), holds that “visa and transportation costs incurred by foreign visa workers are de facto wage deductions from the workers’ first and last weeks’ wages for purposes of the FLSA” and because “all of TruGreen’s H-2B workers present the same claim that the FLSA requires reimbursement of those costs up to the mandated FLSA wage level,” id., at 414. Defense attorneys opposed conditional certification of a class action arguing that (1) it is not required to bear the visa and transportation costs of its H-2B employees, (2) plaintiff is not “similarly situated” to the putative class members because TruGreen provided him with transportation back to Mexico, and (3) “certain H-2B workers did receive compensation for various incidentals arising from their temporary employment.” Id.
FLSA class actions are governed by 29 U.S.C. § 216(b), which authorizes “opt-in” class action treatment of lawsuits brought on behalf of “employees similarly situated.” The district court noted that while FLSA does not define “similarly situated,” the Third Circuit developed a two-stage test that requires the court (1) first determine whether notice of the putative class action should be given to class members, and if conditionally certified then (2) subsequently determine whether to decertify the class. TruGreen, at 414-15. With respect to the level of proof at the first stage required to support conditional class certification, the federal court explained that “Some courts have found that ‘substantial allegations that the putative class members were together the victims of a single decision, policy or plan’ are sufficient; others have required some ‘factual showing’ that the ‘similarly situated’ requirement is satisfied.” Id., at 415 (citations omitted). Still other courts “have adopted an intermediate approach to the ‘similarly situated’ inquiry when the parties voluntarily engage in discovery prior to a decision on conditional certification.” Id. (citations omitted). Of these various options, the district court elected to “require some factual showing that the similarly-situated requirement is satisfied.” Id.
The district court found a “dearth of undisputed evidence” suggesting that the putative class members were “similarly situated” to plaintiff, TruGreen, at 415. Moreover, the defense evidence indicated that H-2B workers were treated differently with respect to incidental expenses, id., at 416. For example, plaintiff admitted that TruGreen gave him a one-way ticket back to Mexico, as well as $150 in cash when he arrived in Delaware, id. In addition, plaintiff admitted factual differences existed among the putative class members, id., at 417. Plaintiff argued that such differences should not affect conditional certification of a class action because the differences are “merely variations in damages,” id. The district court disagreed, concluding that “whether a putative class member received full reimbursement, partial reimbursement or no reimbursement at all, based on specific promises made, or the specific TruGreen office at which they were employed, goes to the heart of the claim, and the ‘similarly situated’ inquiry.” Id. The court also expressed concern about exposing TruGreen to the expense of class action discovery in the case, stating at page 418, “Although a decision on the merits is not appropriate on a motion for conditional certification, the court is concerned about subjecting TruGreen to nationwide discovery and this court with the management of an opt-in class action, on a yet-to-be established legal premise.”
The court held that plaintiff failed to meet his burden of proof to warrant conditional certification of a class action, particularly as his declaration consisted of conclusory assertions rather than admissible evidence. TruGreen, at 417. Accordingly, “this case represents exactly the type of circumstances that the Third Circuit . . . deemed unsuitable for class treatment.” Id. (citation omitted).