United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING MOTION FOR CONDITIONAL
CERTIFICATION AND APPROVAL OF NOTICE 
STEPHEN J. MURPHY, III United States District Judge.
Terri McKinstry filed a collective action complaint against
the Defendants Developmental Essential Services, Inc.
("DES") and Dion Scharf pursuant to the Fair Labor
Standards Act (FLSA), 29 U.S.C. § 201, et seq. Before
the Court is McKinstry's motion for conditional
collective action certification for notice purposes under 29
U.S.C. § 216(b). For the following reasons, the Court
will grant the motion.
and others on whose behalf she brought suit, were healthcare
workers employed in group homes that were owned and/or
operated by Defendants or their affiliates. Compl.
¶¶ 15-16, ECF No. 1. As the owner, manager, and/or
executive officer, Scharf allegedly exercised authority and
control over DES's payroll practices, business
activities, and the employees' work arrangements.
Id. ¶¶ 34-38. Whether they were paid an
hourly rate without overtime or a salary based on hours
worked, McKinstry alleges that she and others were not
properly compensated for hours worked over 40 in a work week.
Id. ¶¶ 17-21. They collectively seek to
recover the unpaid overtime compensation as the following
conditionally certified class:
All current or former healthcare workers employed by
Developmental Essential Services, Inc. and/or Dion E. Scharf,
and/or any of its or their affiliated entities who were not
paid overtime for all hours worked over 40 in a work week
from June 29, 2013 to the present.
Id. ¶ 10.
FLSA allows "any one or more employees for and in behalf
of himself or themselves and other employees similarly
situated" to sue for recovery of overtime compensation.
29 U.S.C. § 216(b). Thus, a plaintiff "who has
suffered only small monetary harm can join a larger pool of
similarly situated plaintiffs." O'Brien v. Ed
Donnelly Enterprises, Inc., 575 F.3d 567, 586 (6th Cir.
2009), abrogated on other grounds by Campbell-Ewald Co.
v. Gomez, 136 S.Ct. 663 (2016). A "collective
action" requires Plaintiffs to (1) "actually be
similarly situated" and (2) "signal in writing
their affirmative consent to participate." Comer v.
Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006)
(quotations omitted). Once a district court determines
"whether plaintiffs have shown that the employees to be
notified are, in fact, similarly situated, " it may
"authorize notification of similarly situated employees
to allow them to opt into the lawsuit." Id.
FLSA does not define "similarly situated, " but the
Sixth Circuit has provided some parameters for the analysis:
(1) FLSA plaintiffs may still be similarly situated
notwithstanding individualized questions of fact that would
preclude class certification under "the more stringent
criteria" of Civil Rule 23, O'Brien, 575
F.3d at 584; (2) FLSA plaintiffs need not demonstrate "a
'unified policy' of violations" to establish
that they are similarly situated, id.; and (3)
positions held by the plaintiff and the putative class
members need only be similar - not identical, Comer,
454 F.3d at 546-47 (quoting district court opinion). Overall,
the standard for authorizing notice is fairly lenient, and
requires only "a modest factual showing."
Id. at 547 (quotation omitted).
support her motion, McKinstry provides declarations and pay
stubs from herself and opt-in plaintiffs Lisa McKinstry,
Becky Ferree, and Heather Doss. See ECF Nos. 12-3,
12-4, 12-5, 12-6. She argues that reading the documents in
concert with the allegations in the Complaint show that the
employees were paid either a fixed salary and hourly pay (the
McKinstrys and Ferree), or only hourly pay (Doss), they were
regularly required to work over 40 hours a week, and they
were not paid overtime for the extra hours. Mot. Cert. 12-13,
ECF No. 12; see T. McKinstry Decl. ¶¶ 9,
10, ECF No. 12-3; L. McKinstry Decl. ¶¶ 9, 10, ECF
No. 12-4; Ferree Decl. ¶¶ 9, 10, ECF No. 12-5; Doss
Decl. ¶ 11, ECF No. 12-6.
McKinstry claims the declarations show that Defendants'
pay policies subjected the employees to the same unlawful
practices at several different locations. The employees'
declarations state the following:
• They worked in non-supervisory capacities with two
other healthcare workers at multiple group homes.
Id. ¶¶ 7, 8, 20 (the McKinstrys and
Ferree), ¶¶ 7, 8, 19 (Doss);
• Their stated job duties were substantially similar:
monitoring, communicating with, providing meals to, and
attending to the medical needs of, the patients; documenting
the patients' medical care; and providing various
household services. I ...