Low Threshold to Obtain Conditional Certification in FLSA Case
The Middle District of Florida recently confirmed the low threshold required for conditional certification of putative collective actions under the Fair Labor Standards Act (“FLSA”). In Gonzalez v. TZ Ins. Solutions, LLC, Case No. 13-2098, 2014 WL 1248154 (M.D. Fla. March 26, 2014) (Gonzalez v TZ Ins) the plaintiff worked hourly for TZ Insurance as a sales specialist. The plaintiff filed a complaint under the FLSA alleging that he performed mandatory pre and post shift work without any compensation. Id. at *1. Plaintiff subsequently moved to conditionally certify the collective action because other “sales specialists in the Tampa call center performed similar job duties regardless of whether they were in health, life, property and casualty insurance, etc.” Moreover, other former TZ Insurance employees had provided declarations indicating that they were similarly required to work off the clock without compensation. Id. In attempting to defeat the conditional certification, TZ Insurance filed extensive competing affidavits.
The threshold for conditional certification is a low one. The burden “is not particularly stringent, fairly lenient, flexible, not heavy and less stringent than for joinder under rule 20(a).” Id. at *3. Indeed, the plaintiff must merely “provide a reasonable basis for the contention that there are other similarly situated employees who desire to join in the litigation.” Id. at *3.
Here, the record reflected that at least five similarly situated TZ employees filed consent documents to opt-in to the collective action. “Although there is no magic number requirement for the notice stage, the presence of five opt-in plaintiffs, each having filed a declaration describing their working conditions and their desire to join in this suit, satisfies the Court that others desire to join in the action.” Id. at *2. Indeed, the declarations by the opt-in plaintiffs indicated that TZ Insurance employed hundreds of similarly situated hourly sales employees. Although the defendants filed a number of affidavits in opposition to the declarations provided by the plaintiff, at this early stage of the proceedings, the evidence proffered far exceeded “this Court’s limited inquiry at the notice stage of the conditional certification process.” Id.