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David Rogers, James Van Daniker, and Ivan Derrick v. Ocean Cable Group Inc.

December 29, 2011

DAVID ROGERS, JAMES VAN DANIKER, AND IVAN DERRICK PLAINTIFFS,
v.
OCEAN CABLE GROUP INC., ROBERT MILLS, AND JOHN DOES 1-5 AND 6-10 DEFENDANTS.



The opinion of the court was delivered by: Hillman, District Judge

OPINION

Before the Court is plaintffs' motion for conditional class certification pursuant to the Fair Labor Standards Act ("FLSA"). For reasons explained below, plaintiffs' motion for conditional class certification will be denied.

I. BACKGROUND

Plaintiffs David Rogers, James Van Daniker and Ivan Derrick ("plaintiffs") are current or former employees of defendant Ocean Gable Group, Inc. ("OCG"). OCG is a company engaged in the business of installing cable television products and services and is an employer within the meaning of 29 U.S.C. § 203(d).*fn1 Plaintiffs were employed as "technicians" or "installers" to perform residential installation, maintenance and upgrading of cable television, internet and telephone service and equipment. OCG contracts with Comcast to perform the installation and service work for Comcast customers. Comcast pays OCG a set amount for each type of work performed according to a certain code. For example, Comcast will pay a certain amount for each installation of a digital cable box which is assigned a particular code. OCG then pays the employee who installed the digital cable box a fixed amount according to the assigned code.

Plaintiffs were paid on a biweekly basis and earnings were determined by code, or task rate, based on the individual tasks performed each week. Plaintiffs were not paid hourly and were not paid a salary. Plaintiffs state they would arrive at OCG offices in the mornings to receive assignments, retrieve any necessary tools or equipment and stock the Comcast vehicles they would use during the day. The technicians would then travel to various residential locations and perform service and maintenance work. Technicians kept a ledger of the customers they serviced and work performed for each day. Plaintiffs allege that there were no scheduled lunch breaks and that they were required to work through lunch. After all the field work is completed for the day, the technicians return to the OCG office to turn in their paperwork and ledgers and any unused equipment.

In January 2010, OCG changed its compensation method. Prior to January 2010, plaintiffs allege that although they worked in excess of a 40 hour workweek, generally averaging 60-70 hours, they were not paid any overtime. In January 2010 and thereafter, plaintiffs received some overtime pay for hours worked in excess of 40 hours in a workweek, but allege that they were not paid for all the overtime hours that they worked.

In January 2010, OCG also began to require technicians to record the time they arrived at OCG offices in the morning until the time they left the office in the morning to go out into the field. Plaintiffs allege that they were only permitted to record 30 minutes for morning "prep time" regardless of the time they arrived or the time they left to go out in the field which was often longer than 30 minutes. At the end of the day, plaintiffs were now required to record their time from when they returned to the OCG office until they left to go home. As with the morning "prep time," plaintiffs allege that they were only permitted to record a preset limited amount of time regardless of how long it took them to turn in their paperwork and unused equipment.*fn2

Plaintiffs allege that defendants violated the FLSA and seek for themselves and similarly situated employees, declaratory and injunctive relief, unpaid wage, unpaid overtime, liquidated damages, and reasonable attorneys' fees.

II. JURISDICTION

Plaintiffs bring this action on behalf of themselves and others "similarly situated" to remedy alleged violations of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., and therefore this Court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal question jurisdiction).

III. DISCUSSION

A. Standard for Class Certification Under the FLSA

Plaintiffs allege that defendant violated the FLSA Section 207*fn3 and seek to sue on behalf of themselves and other "employees similarly situated" pursuant to Section 216(b) of the FLSA.*fn4 See 29 U.S.C. § 216(b), ruled unconstitutional on other grounds in Alden v. Maine 527 U.S. 706, 712 (1999) ("finding unconstitutional provision of FLSA authorizing private actions against states in state courts without their consent). Rather than opting-out as is done in a traditional class action lawsuit, in an FLSA class action, potential class members must opt-in by providing written consent filed with the Court. Manning v. Gold Belt Falcon, LLC, --- F.Supp.2d ----, 2011 WL 4583776, at *1 (D.N.J. Oct. 5, 2011) (stating that under the FLSA there are "two pertinent requirements to maintain a collective action: 1) each Plaintiff must manifest his written consent, and 2) Plaintiff's attorney must file that consent with the Court.").

The term "similarly situated" is not defined in the FLSA. See Ruehl v. Viacom, Inc., 500 F.3d 375, 389 n.17 (3d Cir. 2007). Courts that have addressed whether a putative class is similarly situated have adopted or recognized a two-step than one ...


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