United States District Court, E.D. Michigan, Southern Division
MARCUS WILLIAMS, MICHAEL TAYLOR, and AARON BRADFORD, on behalf of themselves and all others similarly situated,  Plaintiffs,
ALIMAR SECURITY, INC., Defendant.
OPINION AND ORDER (1) DENYING WITHOUT PREJUDICE
PLAINTIFFS' MOTION FOR APPROVAL OF CLASS SETTLEMENT AND
(2) DENYING AS MOOT DEFENDANT'S MOTION TO DECERTIFY
COLLECTIVE ACTION CLASS
V. PARKER U.S. DISTRICT JUDGE
filed this putative collective action on June 30, 2013,
claiming that Defendant violated the Fair Labor Standards Act
(“FLSA”) by failing to pay its alarm response
security officers (“AROs”) time and a half for
overtime work. The Honorable Bernard Friedman, to whom this
case originally was assigned, conditionally certified the
matter as a collective action on November 21,
2013. (ECF No. 19.) On April 28, 2016, Defendant
filed a motion for decertification. (ECF No. 55.) Thereafter,
the parties engaged in a settlement conference before
Magistrate Judge David Grand, where a settlement was reached.
Plaintiffs therefore filed a Motion for Approval of Class
Settlement on August 16, 2016, and submitted a settlement
agreement for in camera review. (ECF No. 60.)
Defendant has not responded to the motion and presumably does
not object to the motion.
FLSA requires all qualifying employers to pay employees no
less than the minimum wage, and to compensate employees for
hours worked in excess of forty per work week at a rate not
less than one-and-a-half times the regular rate of pay. 29
U.S.C. §§ 206(a)(1), 207(a)(1). The statute
authorizes collective actions to recover damages for unpaid
wages provided two conditions are satisfied: (1) the
employees are “similarly situated” and (2) all
plaintiffs provide written consent to becoming a party and
such consent is filed with the court. 29 U.S.C. §
216(b). “This section provides a mechanism that is
‘something akin to a class action.' ”
Torres v. Gristede's Operating Corp., No. 04 Civ
3316, 2006 WL 2819730, at *7 (S.D.N.Y. Sept. 29, 2006)
(citing Scholtisek v. Eldre Corp., 229 F.R.D. 381,
386 (W.D.N.Y. 2005)). Nevertheless, there are differences
between an FLSA collective action and a class action
certified under Federal Rule of Civil Procedure 23:
(1) the collective action binds only potential plaintiffs who
“opt-in, ” whereas Rule 23 requires class members
to opt-out, if they wish not to be included; and (2) FLSA
only requires employees be “similarly situated, ”
whereas Rule 23 requirements are more detailed. Sipas v.
Sammy's Fishbox, Inc., No. 05 Civ. 10319, 2006 U.S.
Dist. LEXIS 24318, at *4 (S.D.N.Y. Apr. 24, 2006).
Torres, 2006 WL 2819730, at *7.
within the Sixth Circuit and in other Circuits generally
apply a two-step procedure for determining whether an FLSA
case should proceed as a collective action. See, e.g.,
Waggoner v. U.S. Bancorp, 110 F.Supp.3d 759, 764 (N.D.
Ohio 2015); Watson v. Advanced Distrib. Servs., LLC,
298 F.R.D. 558, 561 (M.D. Tenn. 2014); see also Comer v.
Wal-Mart Stores, Inc., 454 F.3d 544, 546-47 (6th Cir.
2006) (describing the two-step process). At the first step,
commonly referred to as conditional certification, the
plaintiff must show that the employees in the proposed class
are “ ‘similarly situated.' ”
Comer, 454 F.3d at 546 (quoting 29 U.S.C. §
216(b)). “To satisfy this burden at this initial notice
stage, the plaintiff must only ‘make a modest factual
showing' that [the plaintiff] is similarly situated to
the other employees he [or she] is seeking to notify.”
Waggoner, 110 F.Supp.2d at 764 (quoting
Comer, 454 F.3d at 546-47.) This “
‘certification is conditional and by no means
final.' ” Comer, 454 F.3d at 546 (quoting
Pritchard v. Dent Wizard Int'l, 210 F.R.D. 591,
595 (S.D. Ohio 2002)). As indicated earlier, Judge Friedman
granted Plaintiffs' motion for conditional certification.
(ECF No. 19.)
second step, the court “examine[s] more closely the
question of whether particular members of the class are, in
fact, similarly situated.” Comer, 454 F.3d at
547. The court's focus is on whether the individuals who
have opted into the litigation are similarly situated.
See Ruiz v. Citibank, N.A., 93 F.Supp.3d 279, 297,
(S.D.N.Y. 2015). The Sixth Circuit has provided that
“plaintiffs are similarly situated when they suffer
from a single, FLSA-violating policy, and when proof of that
policy or of conduct in conformity with that policy proves a
violation as to all the plaintiffs.” O'Brien v.
Ed Donnelly Enter., Inc., 575 F.3d 567, 585 (6th Cir.
2009). The court may decertify the class if it determines at
this step that the plaintiffs are not similarly situated.
motion to decertify the class, Defendant does not argue that
Plaintiffs, generally, are not similarly situated. Instead,
Defendant contends that varying circumstances render the
following six individuals not entitled to relief: Jeremy Ray,
Mark Allen, Darrell Cragway, Jerome Cabell, Keith Deramus,
and Darren Malone. In fact, it is evident that the name
Plaintiffs and the other individuals who have opted into the
litigation are similarly situated as they claim to suffer a
violation of the FLSA based on a single decision by
Defendant-- i.e., to classify on call time as not
constituting working time under the FLSA. The parties'
settlement agreement, which includes payments to all of the
individuals listed above (except Ray), suggests that
Defendant no longer is challenging final certification of
this matter as a collective action.
or not a lawsuit proceeds as a collective action, most courts
agree that “ ‘employees' claims under the
FLSA are non-waivable and may not be settled without
supervision of either the Secretary of Labor or a district
court.' ” Snook v. Valley Ob-Gyn Clinic,
P.C., No. 14-cv-12302, 2015 WL 144400, at *1 (E.D. Mich.
Jan. 12, 2015) (quoting Gentrup v. Renovo Servs.,
LLC, No. 1:07cv430, 2011 WL 2532922, at *2 (S.D. Ohio
Jun 24. 2011) (citing Lynn's Food Stores, Inc. v.
United States, 679 F.2d 1350, 1352-53 (11th
Cir. 1982)); see also Steele v. Staffmark
Investments, LLC, ___ F.Supp.3d ___, 2016 WL
1156744, at *1 (W.D. Tenn. 2016) (citing cases). Courts reach
this conclusion having considered Congress' intent when
enacting the FLSA:
“The legislative history of the Fair Labor Standards
Act shows an intent on the part of Congress to protect
certain groups of the population from substandard wages and
excessive hours which endangered the national health and
well-being and the free flow of goods in interstate commerce.
The statute was a recognition of the fact that due to the
unequal bargaining power as between employer and employee,
certain segments of the population required federal
compulsory legislation to prevent private contracts on their
part which endangered national health and efficiency and as a
result the free movement of goods in interstate
Steele, 2016 WL 1156744, at *1-2 (quoting
Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697,
706-07 (1945)) (footnotes omitted in Steele).
“ ‘Recognizing that there are often great
inequalities in bargaining power between employers and
employees, Congress made the FLSA's provisions mandatory;
thus, the provisions are not subject to negotiation or
bargaining between employers and employees.' ”
Id. at *2 (quoting Lynn's Food Stores,
679 F.2d at 1352); see also Barrentine v. Ark.-Best
Freight Sys., Inc., 450 U.S. 728, 740 (1981) (noting
that the Supreme Court has “frequently emphasized the
nonwaivable nature of an individual employee's right to a
minimum wage and to overtime pay under the Act.”).
reviewing a proposed FLSA settlement, the court must
determine whether the settlement is a “fair and
reasonable resolution of a bona fide dispute over FLSA
provisions.” Lynn's Food Stores, 679 F.2d
at 1355. There are several factors courts consider in making
(1) the plaintiff's range of possible recovery; (2) the
extent to which the settlement will enable the parties to
avoid anticipated burdens and expenses in establishing their
respective claims and defenses; (3) the seriousness of the
litigation risks faced by the parties; (4) whether the
settlement agreement is the product of arm's-length