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Ali v. Piron, LLC

United States District Court, E.D. Michigan, Southern Division

March 16, 2018

SUHAIL ALI, SHALAN ALMANSOOB, QASEM SALEH, and KASSEM DUBAISHI, on behalf of themselves and all other persons similarly situated, Plaintiffs,



         Plaintiffs[1] Suhail Ali, Shalan Almansoob, Qasem Saleh, and Kassem Dubaishi (collectively “Plaintiffs”) filed this putative class action lawsuit against Defendants (1) Piron, LLC, (2) Steve Hannah, (3) Craig Monroe, (4) Reynolds Quality Installations, LLC, (5) Roderick Reynolds Jr., (6) Aero Communications, Inc., and (7) Comcast Cable Communications Management, LLC (collectively “Defendants”) on March 30, 2017, alleging minimum wage and overtime wage violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. Plaintiffs allege that Defendants are joint employers who misclassified Plaintiffs as independent contractors in order to circumvent the protections of FLSA. Presently before the Court is Plaintiffs' Motion to Certify Class, filed May 9, 2017. (ECF No. 4.) The motion has been fully briefed. For the reasons stated below, the Court grants, in part, and denies, in part, Plaintiffs' motion.

         I. Factual and Procedural History

          Comcast Cable Communications Management, LLC (“Comcast”) is a global media and technology provider of video, high-speed Internet, and phone services. (ECF No. 1 at Pg ID 4.) To expand its services and enlarge its Michigan customer base, Comcast subcontracted its cable installation and repair services to Aero Communications, Inc. (“Aero”). (Id. at Pg ID 9.) To meet Comcast's business demands, Aero contracted with Piron, LLC (“Piron”), owned and operated by Steve Hannah (“Hannah”), and Reynolds Quality Installations, LLC (“Reynolds Installations”), which is owned and operated by Roderick Reynolds Jr. (“Reynolds”), who provided cable technicians for Comcast's repair and installation services. (Id. at Pg ID 9.)

         Plaintiffs learned of the cable technician positions from Craig Monroe (“Monroe”), one of Piron's corporate officers, and submitted applications for employment. (Suhail Ali Decl., at ¶ 2, ECF No. 1-5.) According to Plaintiffs', Prion employee, Tod Debeaux, interviewed Plaintiffs for the positions. (Ali Decl., at ¶ 3, ECF No. 1-5.) Plaintiffs stated Comcast required them to complete and pass a background check before they could begin work. (Shalan Almansoob Decl., at ¶ 2, ECF No. 1-6; Qasem Saleh Decl., at ¶ 1, ECF No. 1-7; Kassem Dubaishi Decl., at ¶ 1, ECF No. 1-8.) Upon completing and passing Comcast's background check, Plaintiffs received badges with Comcast's and Aero's logos and were given a Piron employee handbook. (ECF No. 1 at Pg ID 11; Ali Decl., at ¶ 11, ECF No. 1-5; Almansoob Decl., at ¶ 5, ECF No. 1-6; Saleh Decl., at ¶ 1, ECF No. 1-7; Dubaishi Decl., at ¶ 1, ECF No. 1-8.) Plaintiffs allege they wore uniforms subject to Comcast's standards. (ECF No. 1 at Pg ID 15.)

         Because Aero provided the cable technician equipment, each workday, Plaintiffs were required to report to Aero's warehouse before responding to any service requests. (ECF No. 1 at Pg ID 14.) Plaintiffs returned to Aero's warehouse at the conclusion of the workday to return their equipment. (Id.) Comcast assigned the service jobs and work routes through a Comcast application, TechNet, which directed Plaintiffs to the work locations and informed them of the type of service needed. (Id. at Pg ID 13.) After completing service requests, Plaintiffs charged the customers, using Aero's billing software, FIP Mobile. (Id.)

         In the field, Monroe and Reynolds monitored Plaintiffs. (Id. at Pg ID 15; Saleh Decl., at ¶ 9, ECF No. 1-7; Dubaishi Decl., at ¶ 9, ECF No. 1-8.) If any technical difficulties arose during the job assignment, Plaintiffs first contacted their direct supervisors, Monroe and Reynolds, and then Comcast's Tech Support Center. (Id. at Pg ID 15; see also Ali Decl., at ¶ 12, ECF No. 1-5.) Monroe and Reynolds were responsible for disciplining Plaintiffs as well. (ECF No. 1 at Pg ID 15.)

         According to Plaintiffs, both Piron and Reynolds Installations paid them. (ECF No. 1 at Pg ID 9.) Plaintiffs allege the pay was inconsistent and varied in the form of cash, personal checks and money orders. (ECF No. 1 at Pg ID 15.) Plaintiffs stated they never received time records and were charged for unsatisfactory services, including charges for faulty equipment and unhappy customers. (Id. at Pg ID 16.) Plaintiffs allege they worked at least twelve-hour shifts, six days a week but were not paid minimum wage and did not receive overtime wages. (Id. at Pg ID 11.) Plaintiffs stated they regularly would overhear Piron employees complaining of their pay, specifically Mario Welch and Keith Jones. (ECF No. 28 at Pg ID 1733; ECF No. 29 at Pg ID 1736; ECF No. 30 at Pg ID 1748; ECF No. 31 at Pg ID 1748.)

         Plaintiffs eventually ended their employment with Defendants and initiated this putative class action lawsuit on March 30, 2017. Plaintiffs allege Defendants are joint employers who misclassified Plaintiffs as independent contractors. (ECF No. 1 at Pg ID 2.) According to Plaintiffs, Defendants owe Plaintiffs minimum wage and overtime wage benefits for willfully violating FLSA. (Id. at Pg ID 16-17.)

         On May 9, 2017, Plaintiffs filed a motion for conditional class certification. (ECF No. 4.) Piron, Hannah, and Comcast filed responses on July 10, 2017. (ECF Nos. 25, 26, & 27.) Plaintiffs filed reply briefs on July 24, 2017. (ECF Nos. 32 & 33.) To further support its position for limiting the potential class, on August 15, 2017, Comcast filed a brief with new authority. (ECF No. 35.) In Plaintiffs' reply briefs, Plaintiffs attached amended declarations alleging Plaintiffs had personal knowledge of Piron's pay practices and policies. In response, on January 11, 2018 and with leave of Court, Comcast filed a supplemental brief. (ECF No. 66.) On January 25, 2018, also with leave of Court, Plaintiffs' filed a response to Comcast's supplemental brief. (ECF No. 68.)

         On October 12, 2017, the clerk entered default against Monroe for failing to respond to the Complaint, and at Plaintiffs' request, the Court reserved on default judgment. (ECF Nos. 47 & 51.) On February 12, 2018 and February 13, 2018, in response to the Court's Show Cause Order, Plaintiffs filed proof of service for Reynolds and Reynolds Installations. (ECF Nos. 72 & 74.) Neither Reynolds nor Reynolds Installations has filed a response to either the complaint or the motion to certify.

         II. Applicable Law

         The 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-cv-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 a 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., ...

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