1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANDREA HOLIFIELD, individually and Case No.: 3:24-cv-00353-RBM-MMP for others similarly situated, 12 ORDER GRANTING PLAINTIFFS’ Plaintiffs, 13 MOTION FOR CONDITIONAL v. CERTIFICATION OF A 14 COLLECTIVE ACTION PURSUANT NEXUSCW, INC., 15 TO

(b) Defendant. 16 [Doc. 12] 17 18 19 Pending before the Court is Plaintiffs Andrea Holifield, Shalom Robertson, and 20 William Johanning’s,1 on behalf of a class of similarly situated employees (“the Hourly 21 Recruiters”)2 (collectively, “Plaintiffs”), motion for conditional certification of a collective 22

23 1 Plaintiff Holifield filed notices of consent on behalf of Robertson and Johanning to join this Fair Labor Standards Act (“FLSA”) collective action pursuant to

(3). 24 (Docs. 3, 16.) 25 2 In Plaintiffs’ Original Class & Collective Action Complaint (“Complaint”), they explain that the Hourly Recruiters include all hourly recruiters subject to Defendant’s overtime 26 approval policy at any time during the past three years (“FLSA Collective Members”) and 27 all hourly recruiters in New Jersey subject to NexusCW’s overtime approval policy at any time during the last 6 years prior to the filing of the Complaint until final resolution of this 28 1 action pursuant to

(b) (“Motion”). (Doc. 12-1.) Defendant NexusCW, Inc. 2 (“NexusCW” or “Defendant”) filed an opposition to Plaintiffs’ Motion (“Opposition”). 3 (Doc. 17.) Plaintiffs filed a reply brief (“Reply”). (Doc. 20.) 4 In their Motion, Plaintiffs argue this Court should conditionally certify a FLSA 5 nationwide collective action. (Doc. 12-1 at 16–19.)3 Specifically, Plaintiffs contend they 6 met their burden at this lenient stage in demonstrating the Hourly Recruiters are similarly 7 situated and that NexusCW had a common policy of requiring pre-approval for overtime, 8 assigning Plaintiffs to clients who instruct them to under-report their hours worked, and 9 failing to independently track Plaintiffs’ hours worked. (Id.) Plaintiffs argue that, if the 10 Court grants conditional certification, nationwide notice to potential opt-in plaintiffs is 11 required as opposed to a subset of the Hourly Recruiters. (Id. at 19–21.) With respect to 12 the form and method of notice, Plaintiffs argue the Court should approve their proposed 13 notice because it is fair, neutral, accurate, and informative, as required. (Id. at 21–23.) 14 Plaintiffs further contend the 60-day opt-in period in the proposed notice is presumptively 15 reasonable. (Id. at 23–24.) Plaintiffs add that the Court should approve sending notice by 16 mail, email, and text and should permit a reminder notice halfway through the notice 17 period. (Id. at 24–26.) Lastly, Plaintiffs argue the Court should order NexusCW to disclose 18 the names and contact information of the Hourly Recruiters for notice purposes. (Id. at 19 26–27.) 20 The Court finds this matter suitable for determination without oral argument 21 pursuant to Civil Local Rule 7.1(d)(1). For the reasons set forth below, Plaintiffs’ Motion 22 is GRANTED. 23 I. BACKGROUND 24 A. Plaintiffs’ Complaint 25 The factual and legal allegations in Plaintiffs’ Complaint that are relevant to 26 resolving Plaintiffs’ Motion are summarized in this section. 27

28 3 1 1. Defendant NexusCW 2 Defendant is a staffing agency that “manage[s] [] contingent workers, including 3 recruiting, payrolling, and HR partnership.” (Doc 1. ¶ 45.) Defendant hires recruiters, like 4 Plaintiff Holifield and the other Hourly Recruiters, to staff at its clients across the country. 5 (Id. ¶ 46.) 6 2. Plaintiffs 7 Defendant employed Plaintiff Holifield as one of its Hourly Recruiters in New Jersey 8 from January 9 to June 2, 2023. (Id. ¶¶ 2, 17, 48.) All the Hourly Recruiters were paid 9 hourly. (Id. ¶¶ 3, 18, 72.) All the Hourly Recruiters were required to report their hours 10 worked to Defendant for approval. (Id. ¶ 73.) All the Hourly Recruiters regularly worked 11 more than 40 hours per week, but Defendant did not pay them for all hours worked. (Id. 12 ¶¶ 4–5, 74–75.) Defendant only paid the Hourly Recruiters for overtime hours that were 13 pre-approved by its management. (Id. ¶¶ 6–7, 23, 40–41, 57, 77.) But Defendant refused 14 to provide the Hourly Recruiters the required pre-approval to work overtime. (Id. ¶ 78.) 15 Due to the nature of the recruiting industry, the Hourly Recruiters were routinely forced to 16 work “unapproved” overtime “off the clock” to complete their job duties and assignments 17 and Defendant did not pay them for that time. (Id. ¶¶ 8–9, 20, 24, 58, 82.) 18 Such unapproved overtime hours were a fundamental requirement to the Hourly 19 Recruiters’ roles as recruiters for Defendant. (Id. ¶¶ 87–90.) Yet Defendant required and 20 instructed the Hourly Recruiters to only record that they worked up to 40 hours on their 21 timesheets or it would not approve their timesheets. (Id. ¶¶ 79–80.) If the Hourly 22 Recruiters recorded more than 40 hours on their time sheets, Defendant would reprimand 23 and discipline them. (Id. ¶ 81.) 24 3. NexusCW’s Knowledge 25 Defendant knew that the Hourly Recruiters worked “unapproved” overtime “off the 26 clock.” (Id. ¶ 92.) Defendant knew that it prohibited the Hourly Recruiters from recording 27 that they worked any overtime hours that they had not obtained Defendant’s written pre- 28 approval to work and Defendant did not provide such pre-approval. (Id. ¶¶ 142–43.) The 1 Hourly Recruiters repeatedly complained to Defendant’s management or their supervisors 2 concerning such unapproved overtime without pay and their attempts to obtain Defendant’s 3 pre-approval to work overtime were unsuccessful. (Id. ¶¶ 93–94, 144, 146.) Defendant 4 knew, should have known, or recklessly disregarded whether it failed to pay the Hourly 5 Recruiters for all hours of compensable work performed. (Id. ¶ 150.) Defendant 6 knowingly, willfully, or in reckless disregard carried out its illegal overtime approval 7 policy that deprived the Hourly Recruiters of earned wages and overtime wages for all 8 hours worked. (Id. ¶ 155.) 9 4. Causes of Action 10 i. Count One – Failure to Pay Overtime under FLSA (On Behalf of 11 FLSA Collective Members) 12 Plaintiffs bring this claim on behalf of the FLSA Collective Members. (Id. ¶ 157.) 13 Plaintiffs allege Defendant violated, and is violating, the FLSA “by employing non-exempt 14 employees (Holifield and the other FLSA Collective Members) in a covered enterprise for 15 workweeks longer than 40 hours without paying such employees overtime wages at rates 16 not less than 1.5 times their regular rates of pay for all the hours they worked after 40 in a 17 workweek, including any ‘unapproved’ overtime hours they worked ‘off the clock.’” (Id. 18 ¶ 158.) Because Defendant “knew, or showed reckless disregard for whether, its overtime 19 approval policy violated the FLSA, NexusCW owes these wages for at least the past 3 20 years.” (Id. ¶ 161.) 21 ii. Count Two – Failure to Pay Overtime Wages under the New Jersey 22 Wage and Hour Law (On Behalf of New Jersey Class Members) 23 Plaintiff Holifield brings this claim under the New Jersey Wage and Hour Law 24 (“NJWHL”) on behalf of herself and the other New Jersey Class Members. (Id. ¶ 165.) 25 Plaintiff Holifield alleges Defendant “violated, and is violating, the NJWHL by employing 26 non-exempt employees (Holifield and the other New Jersey Class Members) for 27 workweeks longer than 40 hours without paying such employees overtime wages at rates 28 not less than 1.5 times their regular rates of pay for all hours worked after 40 in a workweek, 1 including any ‘unapproved’ overtime hours they worked ‘off the clock.’” (Id. ¶ 171 (citing 2 N.J.S.A. 34:11-56a4(b).) 3 iii. Count Three – Failure to Pay Earned Wages Under the New Jersey 4 Wage Payment Law (On Behalf of New Jersey Class Members) 5 Holifield brings this claim under the New Jersey Wage Payment Law (“NJWPL”) 6 on behalf of herself and the other New Jersey Class Members. (Id. ¶ 178.) Holifield alleges 7 Defendant “violated, and is violating, the NJWPL by knowingly failing to pay Holifield 8 and the other Hourly Recruiters the full amount of wages these employees earned (at their 9 agreed rates) for all the hours of work they performed, including any ‘unapproved’ 10 overtime hours they worked ‘off the clock.’” (Id. ¶ 186 (citing N.J.S.A. 34:11-4.2).) 11 B. Relevant Evidence4 12 1. Declaration of Plaintiff Holifield 13 Attached to Plaintiffs’ Motion is a declaration of Holifield. (Doc. 12-2, Declaration 14 of Andrea Holifield (“Holifield Decl.”), Dated May 13, 2024.) Holifield was employed by 15 NexusCW in New Jersey as a non-exempt from overtime recruiter at an hourly rate of 16 $37.50 from approximately January to June 2023. (Id. ¶ 2.) Holifield “regularly worked 17 more than 40 hours per week during [her] employment with [NexusCW]. [She] typically 18 worked 10-to-12 hours per day for 5-to-6 days per week, or 50-to-72 hours per week on 19 average, during [her] employment with [NexusCW].” (Id.) Other NexusCW recruiters 20 worked similar hours and Holifield saw them doing so. (Id. ¶ 8.) 21 To provide its staffing services, NexusCW hires recruiters like Holifield “to screen 22 and place workers into positions with [NexusCW’s] clients.” (Id. ¶ 3.) The recruiters were 23 the “product” NexusCW sold to clients. (Id. ¶ 6.) As a recruiter, Holifield’s “primary job 24 duties included posting available jobs online, calling and emailing candidates, preparing 25 profiles about these workers, screening candidates’ qualifications, preparing candidates for 26 interviews, and placing them in available positions with [NexusCW’s] clients. … 27

28 4 1 [NexusCW] gave [Holifield] detailed instructions on how to do [her] job.” (Id. ¶ 4.) 2 Holifield worked with other NexusCW recruiters and learned from discussions that they 3 “had similar job duties and were paid on an hourly rate basis like [Holifield].” (Id. ¶ 7.) 4 NexusCW and/or its client instituted a standard practice of only paying for 5 “approved” overtime hours for recruiters. (Id. ¶ 7.) NexusCW’s client subjected the 6 recruiters “to its common policy or practice of only paying overtime for ‘approved’ hours. 7 [NexusCW] described this policy to us as needing advanced written approval from 8 management before we work overtime hours.” (Id. ¶ 10.) NexusCW and/or its client 9 expects recruiters to record they work 40 hours per week or less, even though they 10 consistently work more than 40 hours per week, and reinforce this practice by disciplining 11 recruiters if they submit timesheets showing too many hours. (Id.) For example, 12 Holifield’s supervisor at NexusCW’s client, SunRun, directly told her not to record more 13 than 40 hours worked in her timesheets regardless of whether she worked more hours. (Id.) 14 Based on conversations with coworkers, Holifield is aware NexusCW and/or its client 15 “gives similar instructions to other recruiters to cut down on these employees working 16 ‘unapproved’ overtime hours.” (Id.) 17 Because recruiters are non-exempt employees, NexusCW tracks their hours worked 18 per day and per week. (Id. ¶ 3.) NexusCW “knew or should have known” the recruiters 19 were working such long hours “because they tracked [their] hours worked, would receive 20 and/or had access to emails from [them] with timestamps that would tell them the 21 beginning and end of [their] workday, and had access to other internal records showing 22 [their] time-stamped work.” (Id. ¶ 8.) NexusCW had access anytime it wanted to activity 23 reports from NexusCW’s clients “showing the first and last thing [the recruiters] did in a 24 given day, which would inform [NexusCW] how many hours [they] worked and whether 25 [they] worked days on weekends that were not reflected in [their] timesheets.” (Id.) 26 NexusCW did not pay recruiters for overtime hours not reflected on their timesheets 27 sent over by NexusCW’s client. (Id. ¶ 12.) Because NexusCW had a similar “no 28 unapproved overtime” policy to its client, NexusCW “was aware or should have been 1 aware that its client was forcing [the recruiters] to under-report [their] hours worked.” (Id.) 2 NexusCW “failed to conduct a proper inquiry into its client’s time-reporting policies to 3 make sure they were compliant with the wage laws.” (Id.) 4 2. Declaration of Plaintiff Robertson 5 Attached to Plaintiffs’ Motion is a declaration of Robertson. (Doc. 12-3, Declaration 6 of Shalom Robertson (“Robertson Decl.”), Dated May 9, 2024.) Robertson was employed 7 by NexusCW in Maryland and Texas as a non-exempt from overtime recruiter at an hourly 8 rate of $37.50 to $38.46 from approximately January to July 2023. (Id. ¶ 2.) Robertson 9 “regularly worked more than 40 hours per week during [her] employment with 10 [NexusCW]. [She] typically worked 10-to-12 hours per day for 5-to-6 days per week, or 11 50-to-72 hours per week on average, during [her] employment with [NexusCW].” (Id.) 12 Other NexusCW recruiters worked similar hours and Robertson saw them doing so. (Id. ¶ 13 8.) 14 To provide its staffing services, NexusCW hires recruiters like Robertson “to screen 15 and place workers into positions with [NexusCW’s] clients.” (Id. ¶ 3.) The recruiters were 16 the “product” NexusCW sold to clients. (Id. ¶ 6.) As a recruiter, Robertson’s “primary job 17 duties included posting available jobs online for [NexusCW’s] client, calling and emailing 18 candidates, preparing profiles about these workers, screening candidates’ qualifications, 19 preparing candidates for interviews, scheduling their interviews, placing them in available 20 positions with [NexusCW’s] clients, and performing onboarding duties in compliance with 21 [NexusCW’s] clients’ directions.” (Id. ¶ 4.) Robertson worked with other NexusCW 22 recruiters and learned from discussions that they “had similar job duties and were paid on 23 an hourly rate basis like [Robertson].” (Id. ¶ 7.) 24 As non-exempt employees, NexusCW “tracks [Robertson’s] and other recruiters’ 25 hours worked per day and per week using timesheets.” (Id. ¶ 3.) NexusCW “knew or 26 should have known” the recruiters were working such long hours “because they tracked 27 [their] hours worked, would receive and/or had access to emails from [them] with 28 timestamps that would tell them the beginning and end of [their] workday, and had access 1 to other internal records showing [their] time-stamped work.” (Id. ¶ 8.) NexusCW had 2 access anytime it wanted to activity reports from NexusCW’s clients “showing the first and 3 last thing [the recruiters] did in a given day, which would reflect how many hours [they] 4 worked and whether [they] worked days on weekends that were not reflected in [their] 5 timesheets.” (Id.) 6 NexusCW and/or its client instituted standard practice of only paying for “approved” 7 overtime hours for recruiters. (Id. ¶ 7.) NexusCW’s client subjected the recruiters “to its 8 common policy or practice of only paying overtime for ‘approved’ hours. [NexusCW] 9 described this policy to [the recruiters] as needing advanced written approval from 10 management before we work overtime hours.” (Id. ¶ 10.) NexusCW and/or its client 11 expect recruiters to record they work 40 hours per week or less, even though they 12 consistently work more than 40 hours per week, and reinforce this practice by disciplining 13 recruiters if they submit timesheets showing too many hours. (Id.) For example, 14 Robertson’s supervisor at NexusCW’s client, SunRun, directly told her not to record more 15 than 40 hours worked in her timesheets to avoid the “no unapproved overtime” policy. 16 (Id.) Based on conversations with coworkers, Robertson is aware NexusCW and/or its 17 client “gives similar instructions to other recruiters to cut down on these employees 18 working ‘unapproved’ overtime hours.” (Id.) 19 NexusCW did not pay recruiters for overtime hours not reflected on their timesheets 20 sent over by NexusCW’s client. (Id. ¶ 12.) Because NexusCW had a similar “no 21 unapproved overtime” policy to its client, NexusCW “was aware or should have been 22 aware that its client was forcing [the recruiters] to under-report [their] hours worked.” (Id.) 23 NexusCW “failed to conduct a proper inquiry into its client’s time-reporting policies to 24 make sure they were compliant with the wage laws.” (Id.) 25 3. Plaintiff Holifield’s NexusCW Offer Letter 26 Attached to Plaintiffs’ Motion is an offer letter from NexusCW for Holifield to work 27 on a contingent assignment as a recruiter with SunRun. (Doc. 12-6 (Ex. C) at 2.) The offer 28 letter explains Holifield will work as an hourly worker who must “record hours worked via 1 [NexusCW’s] timekeeping system” and her employment is classified as a W-2 worker with 2 the W-2 issued by NexusCW. (Id.) The offer letter explains that overtime requires 3 “[a]dvance written approval, obtained from management prior to working overtime. If 4 overtime is worked and you fail to acquire prior approval, disciplinary measures could be 5 taken.” (Id.) 6 4. End of Employment Letter 7 Attached to Plaintiffs’ motion is a letter from NexusCW explaining that Holifield’s 8 “employment with NexusCW has ended as of 06/02/2023. You held the position of 9 Recruiter on assignment with Sunrun from 01/09/2023-06/02/2023.” (Doc. 12-7 (Ex. D) 10 at 2.) 11 C. Proposed Notice to Potential Collective Action Opt-in Plaintiffs 12 Attached to Plaintiffs’ Motion is a proposed notice and consent form to potential 13 collective action opt-in plaintiffs (“Proposed Notice”). (Doc. 12-8 (Ex. E) at 2–7.) The 14 Proposed Notice is directed to “[a]ll current and former NexusCW recruiters who are paid 15 on an hourly rate basis and were employed by NexusCW at any time from February 23, 16 2021 through «60 days from mailing».” (Id. at 2.) The Proposed Notice explains the FLSA 17 allegations in this case, NexusCW’s position, and that the Court has not yet ruled which 18 party will ultimately prevail. (Id.) 19 The Proposed Notice explains what the potential opt-in plaintiff must do to join this 20 lawsuit, and that they can “contact an attorney of [their] choice” in lieu of Plaintiffs’ 21 counsel. (Id. at 3–4.) The Proposed Notice explains that if the case is not successful, the 22 opt-in plaintiff “will receive nothing” and “will not be responsible for any of the case costs, 23 expenses, or attorneys’ fees.” (Id. at 3.) The Proposed Notice also explains that opt-in 24 plaintiffs “may be selected to answer written questions under oath, provide documents 25 relating to [their] claim, answer questions verbally under oath, and/or testify in court at 26 trial or a hearing.” (Id.) The Proposed Notice explains that those who decide not to join 27 may lose their rights to recover overtime unless they bring a new, separate case and that 28 federal law prohibits retaliation or blackballing for joining or participating in this case. 1 (Id.) Lastly, the Proposed Notice explains all consent forms must be received no later than 2 60 days from the date of mailing, and only covers recovery of back wages for up to three 3 years from the date the consent is filed. (Id. at 4.) 4 II. LEGAL STANDARD 5 The FLSA “permits employees to bring lawsuits on behalf of ‘themselves and other 6 employees similarly situated.’” Senne v. Kansas City Royals Baseball Corp.,

(9th Cir. 2019) (quoting

(b)). In determining whether collective 8 treatment is appropriate, “[f]irst, at or around the pleading stage, plaintiffs will typically 9 move for preliminary certification,” which “refers to the dissemination of notice to putative 10 collective members, conditioned on a preliminary determination that the collective as 11 defined in the complaint satisfies the similarly situated requirement of section 216(b).” 12 Campbell v. City of Los Angeles,

(9th Cir. 2018) (quotation marks 13 and citations omitted).5 Because no discovery has taken place in this case, the Court’s 14 analysis is limited to this first step of preliminary or conditional certification. 15 “At this early stage of the litigation, the district court’s analysis is typically focused 16 on a review of the pleadings but may sometimes be supplemented by declarations or limited 17 other evidence.”

(citations omitted). “[A] majority of courts have determined that 18 evidentiary rules should be relaxed at this stage.” Shaia v. Harvest Mgmt. Sub LLC, 306

, 275 (N.D. Cal. 2015) (citations omitted). The level of consideration is 20 “lenient” and is “loosely akin to a plausibility standard, commensurate with the stage of 21 the proceedings.” Campbell,

(citations omitted). “A grant of preliminary 22 23 5 See also

(“Assuming the collective action has survived its earlier scrutiny, the second 24 stage will come at or after the close of relevant discovery. The employer can move for 25 ‘decertification’ of the collective action for failure to satisfy the ‘similarly situated’ requirement in light of the evidence produced to that point. The district court will then 26 take a more exacting look at the plaintiffs’ allegations and the record. Because of its 27 purpose and timing, decertification can resemble a motion for partial summary judgment on the ‘similarly situated’ question, and may be combined with cross-motions for summary 28 1 certification results in the dissemination of a court-approved notice to the putative 2 collective action members, advising them that they must affirmatively opt in to participate 3 in the litigation.”

4 “Party plaintiffs are similarly situated, and may proceed in a collective, to the extent 5 they share a similar issue of law or fact material to the disposition of their FLSA claims.” 6

. “Significantly, as long as the proposed collective’s ‘factual or legal similarities 7 are material to the resolution of their case, dissimilarities in other respects should not defeat 8 collective treatment.’” Senne,

(quoting Campbell,

). 9 III. DISCUSSION 10 The Court will discuss (1) whether Plaintiffs are entitled to preliminary or 11 conditional certification of a FLSA collective action and (2), if so, the scope, form, and 12 content of the notice to be sent to prospective opt-in plaintiffs. 13 A. Preliminary Certification 14 1. Parties’ Arguments 15 Plaintiffs argue they have presented sufficient evidence at the preliminary 16 certification stage that the Hourly Recruiters are similarly situated. (Doc. 12-1 at 16–19.) 17 Specifically, Plaintiffs contend their Complaint, declarations, and other documentary 18 evidence show NexusCW had a company-wide unapproved overtime policy, forced the 19 Hourly Recruiters to work more than 40 hours per week for NexusCW’s clients, failed to 20 verify the actual amount of work performed by the Hourly Recruiters, and failed to pay the 21 Hourly Recruiters for all hours worked despite such information being readily available to 22 NexusCW upon request. (Id. at 17.) Plaintiffs argue these issues are similar issues of fact 23 material to the disposition of all Hourly Recruiters’ FLSA claims. (Id. at 17–18.) Plaintiffs 24 add that NexusCW’s recordkeeping obligations are non-delegable and their delegating the 25 tracking of hours worked to their clients who forced Plaintiffs to underreport their hours to 26 comply with the no unapproved overtime policy is another similar issue of fact. (Id. at 18.) 27 Defendant responds that Plaintiffs’ Motion should be denied because Plaintiffs 28 cannot establish NexusCW was their employer and that it was NexusCW’s client’s policy 1 to not record unapproved overtime hours worked, not NexusCW’s. (Doc. 17 at 16–21.) 2 Defendants alternatively request the Court defer ruling on Plaintiffs’ Motion until 3 discovery has been conducted as to which entity is Plaintiffs’ employer. (Id. at 16, 22.) 4 Defendants respond that Plaintiffs’ declarations support that NexusCW’s client SunRun, 5 not NexusCW, implemented the alleged policy at issue. (Id. at 24–27.) 6 Plaintiffs reply that they have submitted declarations describing their employment 7 relationship with NexusCW and documentary evidence specifying NexusCW as 8 Holifield’s employer. (Doc. 20 at 5.) Plaintiffs reply that employer status is an element of 9 their FLSA claim for unpaid overtime, but there has been no discovery, and such a question 10 is a merits challenge not appropriate at this stage. (Id. at 5–6.) Plaintiffs also reply that, at 11 this stage, resolving factual disputes and credibility determinations are inappropriate and 12 that courts disregard defendants’ counter-assertions of facts and evidence. (Id. at 6–7.) 13 Plaintiffs reply that they have presented competent evidence that NexusCW was their 14 employer, that NexusCW implemented a policy resulting in the Hourly Recruiters working 15 unpaid hours, and that NexusCW cannot deflect blame onto its clients because its duties 16 under the FLSA are non-delegable. (Id. at 7–8.) 17 2. Analysis 18 The Court finds that, at this preliminary certification stage, Plaintiffs have presented 19 sufficient evidence that they are similarly situated in that they share “similar issue[s] of 20 law or fact material to the disposition of their FLSA claims.” Campbell,

; 21 see also Denham v. Glob. Distribution Servs., Inc., Case No. 18cv1495-LAB (MDD), 2020

, at *2 (S.D. Cal. Feb. 25, 2020) (granting preliminary certification where 23 plaintiffs’ affidavits alleged employees frequently worked overtime hours without pay, that 24 practice potentially violates the FLSA, and each employee was similarly situated in that 25 they were non-exempt W-2 employees working for defendants in California and Arizona); 26 Hensley v. Eppendorf N. Am., Inc., No. 14-CV-419-BEN (NLS),

, at *5– 27 6 (S.D. Cal. June 6, 2014) (granting preliminary certification based only on plaintiff’s 28 1 declaration as well as manuals and job descriptions the plaintiff received while working 2 for the defendant). 3 In Holifield and Robertson’s declarations, they explain they were employed by 4 NexusCW as non-exempt recruiters who regularly worked more than 40 hours per week 5 and saw other NexusCW recruiters doing so who had similar job duties and were paid on 6 an hourly basis. (See Holifield Decl. ¶¶ 2, 7–8; Robertson Decl. ¶¶ 2, 7–8.) Holifield and 7 Robertson explain NexusCW or its client instituted a standard practice of only paying for 8 “approved” overtime hours for recruiters. (See Holifield Decl. ¶ 7; Robertson Decl. ¶ 7.) 9 Holifield and Robertson explain NexusCW tracked their hours worked per day and per 10 week and had access to emails with timestamps concerning the beginning and end of their 11 workdays and internal records showing their time-stamped work. (See Holifield Decl. ¶ 3, 12 8; Robertson Decl. ¶ 3, 8.) Holifield and Robertson explain NexusCW did not pay 13 recruiters for overtime hours not reflected on their timesheets sent to NexusCW by 14 NexusCW’s client. (See Holifield Decl. ¶ 12; Robertson Decl. ¶ 12.) Holifield and 15 Robertson explain NexusCW has the same unapproved overtime policy as its client, so it 16 was or should have been aware its client was forcing recruiters to under-report their hours 17 worked or failed to conduct a proper inquiry to ensure its client’s time-reporting policies 18 were compliant with wage laws. (See Holifield Decl. ¶ 12; Robertson Decl. ¶ 12.) 19 Plaintiffs also attach Holifield’s NexusCW offer letter explaining she was a W-2 20 worker for NexusCW and would report hours worked on NexusCW’s timekeeping system 21 while on contingent assignment with SunRun. (See Doc. 12-6 (Ex. C) at 2.) The offer 22 letter also explains NexusCW’s overtime policy requiring pre-approval. (See id.) Lastly, 23 Plaintiffs attach a letter from NexusCW explaining that Holifield’s “employment with 24 NexusCW [sic] ended as of 06/02/2023.” (Doc. 12-7 (Ex. D) at 2.) 25 At this stage, Plaintiffs, the Hourly Recruiters, are similarly situated in that they have 26 several similar issues of law and fact in common that are material to the disposition of their 27 FLSA claim: (1) whether NexusCW was their employer or joint employer, (2) whether 28 they were non-exempt hourly employees, (3) whether they were subject to NexusCW’s 1 unapproved overtime policy, (4) whether they worked unapproved hours over 40 hours 2 during a workweek during their employment with NexusCW, (5) whether NexusCW could 3 delegate its time recordkeeping duties to its clients, (6) whether NexusCW failed to verify 4 Plaintiffs’ actual hours worked compared to those reported from NexusCW’s clients, and 5 (7) whether NexusCW failed to pay Plaintiffs for all actual hours worked. Questions 6 remain concerning NexusCW’s role in Plaintiffs’ alleged underreporting of all hours 7 worked as opposed to its clients’ roles. However, at this stage, Plaintiffs have presented 8 sufficient evidence of NexusCW’s unapproved overtime policy and ability to verify the 9 actual hours Plaintiffs worked for NexusCW and its clients. (See Holifield Decl. ¶ 3, 8; 10 Robertson Decl. ¶ 3, 8; Doc. 12-6 (Ex. C) at 2.) 11 Defendant attaches much of its own evidence and appears to raise arguments 12 disputing the merits of Plaintiffs’ allegations. (See Doc. 17-1–6.) The Court declines to 13 consider this evidence and the merits at the preliminary certification stage. See Herrera v. 14 EOS IT Mgmt. Sols., Inc., Case No. 20-CV-01093-LHK,

, at *8 (N.D. 15 Cal. Dec. 14, 2020) (“Courts in this circuit have routinely granted conditional certification 16 even where Defendants produce competing declarations challenging Plaintiffs’ allegations. 17 This is because competing declarations at this stage create a ‘he-said-she-said situation,’ 18 and therefore although ‘[i]t may be true that the [defendants’] evidence will later negate 19 [the plaintiffs’] claims,’ that should not bar conditional certification at the first stage.”) 20 (citations omitted); Hensley,

, at *6 (“This Court cannot properly 21 determine whether the employees are sufficiently similarly situated to proceed collectively 22 to trial without a more complete factual record. This Court will not make such a 23 determination based on disputed facts, where the employee-plaintiff has not yet had a 24 chance to obtain fair discovery that is likely needed to respond.”); Sanchez v. Sephora USA, 25 Inc., No. 11-03396 SBA,

, at *4 (N.D. Cal. 2012) (“Federal courts are 26 in agreement that evidence from the employer is not germane at the first stage of the 27 certification process, which is focused simply on whether notice should be disseminated to 28 potential claimants.”) (citations omitted); Labrie v. UPS Supply Chain Sols., Inc., No. C08- 1 3182 PJH,

, at *5–6 (N.D. Cal. Mar. 18, 2009) (granting preliminary 2 certification and finding plaintiffs classified as independent contractors similarly situated 3 with respect to the FLSA violations alleged and finding the defendants’ arguments going 4 to the merits “are more appropriately addressed on a motion to decertify or motion for 5 summary judgment once notice has been given, the deadline to opt-in has passed, and 6 discovery is closed.”). 7 Thus, the Court GRANTS Plaintiffs’ Motion for conditional certification of a FLSA 8 collective action. 9 B. Proposed Notice 10 The Court has reviewed Plaintiffs’ Proposed Notice (Doc. 12-8 (Ex. E)) and finds 11 that it is accurate, neutral, fair, and informative. The Court APPROVES the Proposed 12 Notice pending the modifications noted below. The Court will discuss the scope of the 13 Proposed Notice and then its form and method below. 14 “The Supreme Court has held that employees need to receive ‘accurate and timely 15 notice concerning the pendency of the collective action, so that they can make informed 16 decisions about whether to participate’ in the collective action.” Herrera,

7342709, at *10 (quoting Hoffman-La Roche Inc. v. Sperling,

(1989)). 18 “In exercising the discretionary authority to oversee the notice-giving process, courts must 19 be scrupulous to respect judicial neutrality. To that end, trial courts must take care to avoid 20 even the appearance of judicial endorsement of the merits of the action.” Hoffman-La 21 Roche Inc., 4983 U.S. at 174. 22 1. Nationwide Notice 23 Plaintiffs argue the Court should reject Defendant’s attempt to limit the Proposed 24 Notice to a subsection of workers because NexusCW has a common unapproved overtime 25 pay policy and attempts to delegate its recordkeeping obligations to its clients. (Doc. 12-1 26 at 19–21.) Defendant responds Plaintiffs’ Proposed Notice is too broad in covering all 27 recruiters paid on an hourly basis as it would include part-time workers who did not work 28 close to 40 hours a week. (Doc. 17 at 27.) Defendant responds the Proposed Notice should 1 be limited to hourly recruiters at SunRun since Plaintiffs Holifield and Robertson only 2 worked for that NexusCW client. (Id. at 27–28.) Plaintiffs reply that NexusCW’s objection 3 to including all hourly-paid recruiters is an issue of damages, which is premature, and such 4 plaintiffs that cannot prove they worked more than 40 hours in a workweek can be 5 dismissed from the case or on summary judgment. (Doc. 20 at 12.) 6 At this stage, the Court declines to limit the scope of recipients to those hourly 7 recruiters at NexusCW’s client SunRun. C.f. Fernandez v. Tox Corp.,

1089, 1098 (C.D. Cal. 2023) (“Since Campbell was decided, district courts applying its 9 relaxed standard at this stage routinely will grant conditional certification to a nationwide 10 opt-in collective, even when the plaintiff does not have evidence of the challenged policy 11 or practice in every location of the defendant’s operations.”) (collecting cases). The Court 12 also declines to limit the scope of recipients to exclude part-time workers because this 13 lawsuit involves alleged unrecorded work hours. C.f. Costa v. Apple, Inc., No. 23-CV- 14 01353-WHO,

, at *4 (N.D. Cal. Nov. 21, 2023) (requiring plaintiffs to 15 modify collective to only those employees who recorded more than 40 hours in a 16 workweek between the grant of restricted stock units (“RSUs”) at issue and the time the 17 RSUs vested) (emphasis added). 18 To attempt to fashion a bright line for the notice aimed at excluding part-time hourly 19 workers may unreasonably foreclose the inclusion of hourly workers who allegedly worked 20 unrecorded overtime in excess of 40 hours in a workweek, even if they did not record a 21 40-hour workweek. However, Plaintiffs must modify the consent form to limit opt-in 22 plaintiffs to those hourly employees who worked any unrecorded or uncompensated hours 23 over 40 hours in a workweek during the relevant time period. Additionally, the email and 24 text message notice must be revised to explain recipients “may be” eligible to participate 25 in this collective action. 26 /// 27 /// 28 /// 1 2. Form and Method of Notice 2 i. Parties’ Arguments 3 Plaintiffs argue their Proposed Notice is fair, neutral, accurate, and informative and 4 should be approved by the Court. (Doc. 12-1 at 21–27.) Plaintiffs explain that Defendants 5 may request various warnings to be included, but that those warnings are not necessary 6 because they have a tendency to chill participation. (Id. at 22–23.) Plaintiffs contend a 60- 7 day opt-in period is presumptively reasonable. (Id. at 23–24.) Plaintiffs argue the Court 8 should approve sending notice to potential opt-in plaintiffs by mail, email, and text and 9 permit a reminder notice halfway through the opt-in period. (Id. at 24–26.) Lastly, 10 Plaintiffs request the Court order NexusCW to disclose the names and contact information 11 to Plaintiffs’ counsel of all putative collective action members within 15 days of the Court’s 12 order. (Id. at 26–27.) Specifically, the list “should be in a computer readable format such 13 as Microsoft Excel Spreadsheet (or comparable computer-readable format) and should 14 include each putative collective members’ name as well as their last-known mailing 15 addresses, email addresses, telephone numbers, job title(s), location(s) worked, and dates 16 of employment in each relevant job title and each location worked.” (Id.) 17 Defendants argue Plaintiffs’ requests for personal information such as dates of birth 18 and locations of work is invasive and overbroad. (Doc. 17 at 28.) Defendants argue text 19 message notice is invasive and potentially costly to putative collective members. (Id. at 20 28–29.) Defendants argue the Proposed Notice does not provide a neutral discussion and 21 fails to warn recipients they are not obliged to join the lawsuit, may choose their own 22 counsel, and fails to explain their rights, options, and obligations. (Id. at 29.) 23 Plaintiffs reply that the personal information requested is regularly disclosed at the 24 conditional certification stage because it assists in sending notice and identifying 25 forwarding addresses for returned or undelivered mail. (Doc. 20 at 12–13.) Plaintiffs reply 26 that notice via text message is not invasive or costly and is a ubiquitous form of 27 communication in today’s world. (Id. at 13–14.) Plaintiffs reply that the Proposed Notice 28 already informs recipients they are not obligated to join and may choose their own counsel, 1 advises them of discovery obligations, and advises them they will not incur costs because 2 Plaintiffs’ counsel has agreed to cover all litigation costs. (Id. at 14.) 3 ii. Analysis 4 The Court will address each of the issues Defendant disputes below. The Court finds 5 no issues with the unchallenged portions of Plaintiffs’ Proposed Notice except for the two 6 typos noted at the end of this section. 7 Birthdates and Locations of Work. The Court finds that Plaintiffs’ request for 8 Defendant to provide potential opt-in plaintiffs’ birth dates and locations worked is 9 appropriate. See Herrera,

, at *11 (ordering defendants to produce 10 birthdates for collective action members). Birth dates may prove useful in identifying 11 forwarding addresses for undelivered mail. Additionally, knowing the potential opt-in 12 plaintiffs’ locations worked may be particularly important to understanding the scope of 13 the alleged issues concerning the unapproved overtime policy. 14 Text Message Notice. The Court finds that notice via mail, email, and text message 15 is appropriate and that a reminder notice may go out when 30 days are left in the op-in 16 period. See Apple, Inc.,

, at *7 (“[G]iven the ubiquity of text messaging 17 … plaintiffs may distribute notice via mail, email, and text message. They may also send 18 a reminder postcard and reminder text 60 days after the notice is mailed to potential 19 collective action members.”); Cuevas v. ConAm Mgmt. Corp., Case No. 18cv1189- 20 GPC(LL),

, at *7 (S.D. Cal. Oct. 21, 2019) (“District courts in this circuit 21 routinely approve reminder notices 30 days prior to the end of the opt-in period.”) 22 (collecting cases). 23 Neutral Discussion and Warnings. Defendant does not explain how Plaintiffs’ 24 notice fails to provide a neutral discussion of this case. Upon the Court’s review of the 25 Proposed Notice, it describes Plaintiffs’ allegations and Defendant’s response fairly and 26 the Court’s neutral position appropriately. Furthermore, the Proposed Notice already 27 informs recipients they are not obliged to join the lawsuit and that they may choose their 28 own counsel. (Doc. 12-8 (Ex. E) at 3–4.) The Proposed Notice adequately informs 1 recipients of their rights and obligations, including that they “may be selected to answer 2 written questions under oath, provide documents relating to [their] claim, answer questions 3 verbally under oath, and/or testify in court at trial or a hearing.” (Id. at 3.) The Proposed 4 Notice also informs recipients that they will not pay all costs associated with the litigation, 5 (id. at 3), because Plaintiffs’ counsel will pay all such costs. C.f. Geiger v. Charter 6 Commc’ns, Inc., No. CV 18-158-DMG (GJSX),

, at *8 (C.D. Cal. May 7 13, 2019) (“Courts generally agree, however, that including a statement that opt-in 8 plaintiffs may have to bear Defendants’ litigation costs would have the unnecessary effect 9 of chilling participation in the suit.”). 10 Additional Modifications. The Proposed Notice must be changed to eliminate 11 references to “Staffmark” and replace those typos with NexusCW. (Doc. 12-8 at 3, 5.) 12 IV. CONCLUSION 13 For the foregoing reasons, Plaintiffs’ Motion (Doc. 12) is GRANTED. The Court 14 ORDERS as follows: 15 1. Within 5 days of this Order, Plaintiffs shall file a revised Proposed Notice and 16 consent form incorporating the necessary modifications identified in this 17 Order. 18 2. Within 15 days of this Order, NexusCW shall provide Plaintiffs a list 19 (“Collective Action List”) in a computer readable format such as Microsoft 20 Excel Spreadsheet (or comparable computer-readable format). The Collective 21 Action List shall include each putative collective members’ name as well as 22 their last-known mailing addresses, email addresses, telephone numbers, date 23 of birth, job title(s), location(s) worked, and dates of employment in each 24 relevant job title and each location worked. 25 3. Within 7 days of receipt of the Collective Action List from Defendant, 26 Plaintiffs must send the Notice and consent form to all individuals on the 27 collective action list via first-class mail, email, and text message. Potential 28 opt-in plaintiffs shall be permitted to file consent to join forms until 60 days 1 after the mailing of the Notice. A reminder may be sent halfway through the 2 60-day notice period. 3 Additionally, given the parties’ dispute concerning Plaintiffs’ motion for leave to 4 amend Plaintiffs’ Complaint concerns many arguments relating to Plaintiffs’ Motion and 5 Defendant’s Motion to Change Venue (See Docs. 21–23), the parties must file a one-page 6 joint status report by Friday, August 23, 2024 explaining whether Defendant still opposes 7 Plaintiffs’ motion for leave to amend and on which grounds identified in Defendant’s 8 opposition (Doc. 22). 9 IT IS SO ORDERED. 10 DATE: August 20, 2024 11 ____________________________________ 12 HON. RUTH BERMUDEZ MONTENEGRO 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28