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Tzib v. Moore Feed Store, Inc.

United States District Court, N.D. Mississippi, Oxford Division

May 21, 2015

ALAN I. TZIB, on behalf of himself and others similarly situated, Plaintiffs,


MICHAEL P. MILLS, District Judge.

This cause comes before the court on the motion of plaintiff Alan Tzib to conditionally certify this Fair Labor Standards Act ("FLSA") action as a "collective action" under 29 U.S.C. § 216(b). Defendant Moore Feed Store, Inc. ("Moore") has responded in opposition to the motion, and the court, having considered the memoranda and submissions of the parties, concludes that the motion is well taken and should be granted.

This is an FLSA action in which plaintiff, a former Moore employee, alleges that defendant refused to pay him and other employees of the feed store for overtime work which they performed. Specifically, plaintiff contends that:

Regardless of how many hours over forty Plaintiff works during a week, Defendant pays hourly-rate employees only at their straight time rates. Defendant also compels Plaintiff and those similarly situated to him to work off the clock, by requiring Plaintiff and similarly situated employees to work after they have clocked out at the end of their shifts. Defendant had no policy or practice through which hourly-rate employees could receive compensation for work performed after they had already clocked out for the day.

In responding to these allegations, defendant argues that plaintiff and several other similarly situated employees are (or were) actually "per day" employees, pursuant to a consensual arrangement which, defendant contends, has broad (though clearly not unanimous) support among the affected employees.

Plaintiff seeks recovery against defendant pursuant to § 216(b) of the FLSA, which provides that:

[a]ny employer who violates the provisions of [the FLSA] shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.... An action to recover the liability prescribed in [this section] may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

29 U.S.C. § 216(b). Thus, § 216(b) provides that workers may sue individually or collectively on behalf of "themselves and other employees similarly situated." The statute further provides that, to participate in a collective action, each employee must "give[ ] his consent in writing" by notifying the court of his intent to opt in.

The FLSA's "opt in" format for collective actions is in contrast to the "opt out" format applicable to Rule 23 class actions. As stated by the Fifth Circuit:

There is a fundamental, irreconcilable difference between the class action described by Rule 23 and that provided for by FLSA [§ 216(b)]. In a Rule 23 proceeding, a class is described; if the action is maintainable as a class action, each person within the description is considered to be a class member and, as such, is bound by judgment, whether favorable or unfavorable, unless he has "opted out" of the suit. Under [§ 216(b)] of FLSA, on the other hand, no person can become a party plaintiff and no person will be bound by or may benefit from judgment unless he has affirmatively "opted into" the class; that is, given his written, filed consent.

LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 288 (5th Cir. 1975). It is well settled that "[d]istrict courts are provided with discretionary power to implement the collective action procedure through the sending of notice to potential plaintiffs." Lima v. Int'l Catastrophe Solutions, Inc., 493 F.Supp.2d 793, 797 (E.D. La. 2007).

At this juncture, the sole issue for this court's resolution is whether it should conditionally certify a class as part of an FLSA collective action, and there is, unfortunately, some uncertainty regarding the prevailing legal standards in this regard. In a very recent order conditionally certifying a class in an FLSA action, U.S. District Judge Carl Barbier of the Eastern District of Louisiana noted that:

Courts typically follow one of two approaches in certifying a class: the Lusardi or the Shushan approach. Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir.1995), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). Although the U.S. Court of Appeals for the Fifth Circuit has not adopted one test over the other, district courts commonly employ the approach of Lusardi v. Xerox Corp., 122 F.R.D. 463 (D. N.J. 1988). Acevedo v. Allsup's Convenience Stores, Inc., 600 F.3d 516, 518-19 n. 1 (5th Cir. 2010)("[W]e have not adopted any ...

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