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Date: 09-07-2022
Case Style:
Case Number: 21-cv-01537
Judge: Steven P. Logan
Court: United States District Court for the District of Arizona (* County)
Plaintiff's Attorney: Courtney Lowery and Sean Short
Defendant's Attorney: Douglas Calvin Lynn, III and Thomas Michael Stanek
Description: Phoenix, Arizona employment law lawyers represented Plaintiffs who sued Defendant on a Fair Labor Standards Act violation theory.
Plaintiffs Darwin Harris and Jason McCoy (collectively, “Plaintiffs”) bring this action against Defendants National Waterproofing & Roofing, LLC, and Kirk Poteet (collectively, “Defendants”) to recover allegedly unpaid overtime wages under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., and allegedly unpaid minimum wages under Arizona state law. Plaintiffs also seek a declaratory judgment and damages arising from Defendants' allegedly retaliatory actions. Presently before the Court is Plaintiffs' Motion for Conditional Certification (Doc. 19), in which Plaintiffs seek to conditionally certify similarly situated workers as a class for purposes of pursuing a collective FLSA action under 29 U.S.C. § 216(b).
Plaintiffs were or are employed as hourly-paid employees at National Waterproofing & Roofing, LLC (“NWR”), an Arizona company that provides roof restorations, roof coatings, and floor coatings for customers in several states, including
Arizona, Colorado, and Arkansas.[1] (Doc. 1 at 4-5). Each job takes approximately one to two weeks to complete, and many of the jobs require Defendants' employees to drive long distances to reach the job site. (Id. at 5). Prior to driving to a jobsite, Plaintiffs and other hourly-paid employees are expected to load the company truck, which typically takes between one-and-a-half to two hours. (Id.). Defendants paid Plaintiffs and other hourly-paid employees $10 per hour for the time it took them to drive to a jobsite, up to a maximum of ten hours. (Id.). If a drive was longer than ten hours, Plaintiffs and other hourly-paid employees were not compensated for the additional hours spent driving. (Id.).
Plaintiffs, who were both based out of Defendants' Arkansas location, assert that they and other hourly-paid employees employed by Defendants regularly worked over 40 hours per week and that they regularly worked hours-both overtime and non-overtime- which went “unrecorded and uncompensated.” (Id.). On September 9, 2021, Plaintiffs filed the Complaint in this matter, asserting four claims: individual and collective action claims for violations of the FLSA's minimum wage and overtime provisions (Counts I and II); a violation of the FLSA's anti-retaliatory provision (Count III); and a violation of the Arizona Minimum Wage Act, A.R.S. § 23-363 (Count IV). (Id. at 10-15). Plaintiffs seek to pursue this case as a collective action and to conditionally certify the following class:
All hourly-paid employees employed by National Waterproofing & Roofing, LLC, and Kirk Poteet, who worked over 40 hours in any week in which they also drove to a jobsite since September 9, 2018.
(Id. at 8-9; see also Doc. 19-1 at 1 & Doc. 20 at 6, 16). Defendants argue that conditional class certification is inappropriate because Plaintiffs have failed to demonstrate that they and the purported class members are “similarly situated” as is required under the law. (Doc. 32 at 5-11). However, if certification is warranted, Defendants alternatively request that Plaintiffs' notice-and-opt-in period be limited to sixty (60) days and that the proposed notice be amended in several ways. (Id. at 11-13).
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Outcome: Accordingly, IT IS ORDERED that Plaintiffs' Motion for Conditional Certification (Doc. 19) is denied. This case will proceed as a single action brought by Plaintiff's Darwin Harris and Jason McCoy against Defendants NWR and Kirk Poteet for violations of the FLSA and the Arizona Minimum Wage Act.
Plaintiff's Experts:
Defendant's Experts:
Comments: