Beukes v. Boehnke Waste Handling, LLC

                 UNITED STATES DISTRICT COURT                            
                    DISTRICT OF MINNESOTA                                


Peterus  Beukes,  Stephanus  De  Klerk,  Case No. 24-cv-828 (JWB/DLM)    
Cornelius  Engelbrecht,  and  Gabriel  Du                                
Plessis, on behalf of themselves and others                              
similarly situated,                                                      

               Plaintiffs,       ORDER GRANTING MOTION FOR               
                                 CONDITIONAL CERTIFICATION               
v.                                    AND FOR NOTICE TO                  
                                   PUTATIVE CLASSMEMBERS                 
Chad  J.  Boehnke  and  Boehnke  Waste                                   
Handling, LLC,                                                           

               Defendants.                                               


    Plaintiffs  are  laborers.  Each  of  them  worked  for  Defendant  Boehnke  Waste 
Handling, LLC (“Boehnke Waste”) in the recent past. Defendant Chad J. Boehnke is one 
of Boehnke Waste’s principals. Boehnke Waste is in the business of processing manure for 
farms and ranches throughout the Midwest. Plaintiffs’ jobs included pumping, processing, 
hauling, and spreading that manure. Plaintiffs allege that Boehnke Waste took advantage 
of their noncitizen, H-2A Temporary Agricultural Worker statuses by underpaying them 
in violation of the Fair Labor Standards Act (“FLSA”), 

 et seq. Plaintiffs 
have moved this Court for an order conditionally certifying a class of similarly-situated 
workers and approving the provision of notice of this lawsuit to those similarly-situated 
workers. Defendants oppose Plaintiffs’ motion, asserting that a searching inquiry into the 
facts underlying this matter would demonstrate that: Plaintiffs are not similarly situated to 
those they seek to represent; Plaintiffs will not be adequate class representatives; and 
Plaintiffs’ claims will fail on the merits.                               
    The Court held a hearing on this matter on September 5, 2024. Based on the parties’ 

submissions, as well as the arguments presented at hearing, the Court finds Plaintiffs’ 
position well taken and grants their motion for conditional certification. Additionally, the 
Court approves Plaintiffs’ proposed notice with certain adjustments designed to ensure 
notice is timely received and responded to. As described more fully below, it has long been 
recognized in this district and throughout the country that conditional certification is not a 

high  bar,  and  one  which  Plaintiffs  easily  clear  here.  The  Court  is  unpersuaded  by 
Defendants’ arguments to the contrary, and declines their invitation to adopt an out-of-
circuit framework which would impose a more rigorous analysis at this early stage of 
litigation. That is not the point of conditional certification, which, at its core, is designed 
to ensure that putative FLSA collective action members receive early and effective notice 

of their potential claims.                                                
                         BACKGROUND                                      
    Plaintiffs Peterus Beukes, Stephanus De Klerk, Gabriel Du Plessis, and Cornelius 
Englebrecht—on behalf of all other similarly situated workers—brought this action against 
their former employer, Boehnke Waste, and one of its principals, Chad J. Boehnke, alleging 

several  employment-related  claims.  (See  generally  Doc.  19  (operative  amended 
complaint).) Boehnke Waste is a company that contracted with farms and ranches to 
perform manure management and other related services. (Doc. 25 ¶ 2.) Plaintiffs were part 
of a federal H-2A nonimmigrant guestworker visa program established by the Immigration 
Reform  and  Control  Act  of  1986.  (Doc.  19  ¶¶  53-59;  see  also  

 
(empowering  the  Secretary  of  Labor  to  “issue  regulations  regarding  the  issuance  of 
temporary  labor  certifications”).)  This  program  allows  employers  to  recruit  and  hire 

nonimmigrant aliens as temporary agricultural laborers when there are certified shortages 
of domestic workers. 

 § 655.1(a)(1); see also U.S. Department of Labor (“DOL”), H-2A 
Temporary  Agricultural  Program,  https://perma.cc/5RXN-QJTY  (last  visited  Oct.  3, 
2024). The relevant regulations provide that “H-2A employers may also be subject to the 
FLSA” and that “[t]he FLSA operates independently of the H-2A program and has specific 

requirements  that  address  payment  of  wages,  including  deductions  from  wages,  the 
payment of Federal minimum wage and payment of overtime.” 

(e). 
     Plaintiffs claim that Boehnke Waste, an LLC owned by Mr. Boehnke, applied for 
at least 58 H-2A workers, representing in their applications that the guestworkers would 
perform agricultural work operating farm equipment at various worksites, many not owned 

by Mr. Boehnke. Plaintiffs were among these H-2A workers. (See generally Doc. 19.) They 
claim that instead of the agricultural work Boehnke Waste represented its H-2A workers 
would perform, Boehnke Waste actually sent Plaintiffs to remote dairies, feedlots, ranches, 
and farms throughout Minnesota, Iowa, South Dakota, and North Dakota to perform 
mechanical equipment repair, equipment and manure hauling on public roads, manure 

pumping from holding pits, and construction and demolition projects. (Id. ¶¶ 89-100.) 
Plaintiffs claim that because this work was not agricultural, it was overtime-eligible work1 

1 Agricultural work is generally exempt from the FLSA’s overtime pay requirements. See 

(b)(13).                                                   
for which they were owed overtime pay. (Id. ¶¶ 140-45.) Additionally, Plaintiffs allege that 
they were not paid for their compensable time traveling to, from, and between worksites 
and the company’s Minnesota headquarters during normal working hours.2 (Id. ¶¶ 131-35.)  

    As this federal action got underway, the Court held a Rule 16 pretrial conference 
and set a limited pretrial scheduling order to govern the parties’ limited written discovery. 
(Doc. 27.) Since that time, three new members—Abram Carl Meeding, Danie Johannes 
Smith, and Johannes Jacobus—have filed notices seeking to opt in to this lawsuit. (Docs. 
28, 29.)                                                                  

    Plaintiffs filed their current motion seeking conditional certification on August 22, 
2024. (Docs. 30 (Plaintiffs’ motion), 32 (Plaintiffs’ memorandum), 33 (Plaintiffs’ Murray 
declaration with exhibits).) They ask the Court to order conditional certification of a 
collective action, authorize notice to putative members through the most expedient media, 
require Defendants to post the approved notice in housing locations occupied by potential 

collective members, order Defendants to provide a list of collective members with names, 
addresses, telephone numbers, emails, and dates of employment, and set an opt-in deadline 
of  180  days.  Plaintiffs  propose  to  define  the  FLSA  collective  as:  all  H-2A  workers 
employed by Boehnke Waste Handling, LLC at any time from 2021 through 2024. 
    In support of their motion, Plaintiffs submit declarations from three individuals 

(Danie  Smith,  Abram  Carl  Meeding,  and  Johannes  Jacobus),  detailing  their  job 


2 Plaintiffs raise a number of additional employment-related claims, but this Court’s 
discussion is limited to the issues relevant to consideration of their FLSA conditional 
certification motion.                                                     
descriptions,  salaries,  duties,  and  hours.  (Docs.  33–33-3.)  The  declarations  aver  the 
following similar facts:                                                  

      •  The three individuals were part of the H-2A program.            
      •  All three worked for Boehnke Waste and Mr. Boehnke in 2022 (Smith, 
         Meeding) or 2023 (Jacobus).                                     
      •  All three performed the same work: manure handling and related work at 

         various dairies, feedlots, and other sites across several states, most or all of 
         which were not owned by Boehnke Waste or Mr. Boehnke.           
      •  Each individual regularly worked more than 40 hours in a week.  
      •  Despite working these hours, individuals were rarely paid overtime for the 

         hours worked over 40 hours per week.                            
      •  Despite  extensive  traveling  between  worksites  and  Boehnke  Waste’s 
         headquarters in Minnesota, none of the individuals was paid for the hours 
         spent traveling.                                                

      •  All of the individuals use email and WhatsApp for their most reliable means 
         of  communication  because  they  are  either  regularly  traveling  for  their 
         ongoing work as H-2A guestworkers, or because they have returned to their 
         country of origin outside of the United States.                 
    Plaintiffs argue that these attestations, combined with the allegations in the amended 

complaint, satisfy their burden to demonstrate that the putative collective members are 
similarly situated and that the matter should be conditionally certified as a collective.  
    Defendants  oppose  the  motion.  (Docs.  36  (Defendants’  memorandum),  37 
(Defendants’ Reynoso declaration with exhibits).) They contend that named plaintiffs are 
not similarly situated to nor adequate representatives of the putative class. Defendants 

further assert that the plaintiffs’ misclassification and unpaid travel time claims deserve a 
searching inquiry before any certification decision, conditional or otherwise. Recognizing 
that most of these arguments are inconsistent with the conditional certification protocol set 
forth first in Lusardi v. Xerox Corp., 

 (D.N.J. 1987), and adopted by myriad 
courts since, see, e.g., Babbitt v. Target Corp., No. 20-cv-490 (DWF/ECW), 

, at *2-4 (D. Minn. March 16, 2023), Frank v. Gold’n Plump Poultry, Inc., No. 4-
cv-1018 (JNE/RLE), 

, at *2-5 (D. Minn. Sept. 14, 2005), Defendants 
ask the Court to abandon the well established, two-step certification protocol and instead 
use a more rigorous, merits-based inquiry at this stage, as was done in Swales v. KLLM 
Transp. Servs., LLC, 

 (5th Cir. 2021). Defendants have provided no 

alternative to Plaintiffs’ proposed notice, instead asking the Court to give them more time 
to meet and confer with Plaintiffs about notice if the Court grants conditional certification. 
                           ANALYSIS                                      
    Under the FLSA, “any one or more employees” may bring a collective action 
against  an  employer  for  uncompensated  hours  worked  for  “themselves  and  other 

employees similarly situated.” 

(b); see also Murphy v. Lab. Source, LLC, 
No. 19-cv-1929 (ECW), 

, at *11 (D. Minn. Feb. 8, 2022). The FLSA 
collective action is a vehicle intended to lower the litigation cost to individual class 
members who seek to vindicate their right to fair compensation for their labor. Hoffmann-
La Roche Inc. v. Sperling, 

 (1989). Such collective actions allow a 
plaintiff who alleges wage and hour violations to assert claims not only for themselves, but 
also for others similarly situated. See 

(b), 256. Unlike class actions 

brought under Federal Rule of Civil Procedure 23 where members must “opt-out” or be 
bound  by  the  lawsuit’s  outcome,  the  FLSA  collective  action  process  is  reversed: 
individuals must “opt-in” to be a part of the lawsuit. See, e.g., Smith v. Heartland Auto. 
Servs., Inc., 

 (D. Minn. 2005). Thus, providing potential 
plaintiffs with timely notice of the putative collective action is essential to ensure they have 

a chance to affirmatively “opt-in.” Wang v. Jessy Corp., No. 17-cv-5069 (JRT/HB), 

, at *2 (D. Minn. Oct. 30, 2018).                               
    The FLSA does not mandate any  particular process for providing notice of a 
collective action, see 

(b), but the Supreme Court has interpreted the statute 
to grant courts the authority to manage the process, see Hoffmann-La Roche, 493 U.S. at 

170–71 (“Section 216(b)’s affirmative permission for employees to proceed on behalf of 
those similarly situated must grant the court the requisite procedural authority to manage 
the process of joining multiple parties . . . to assure that the task is accomplished in an 
efficient and proper way”). As a result, federal courts have played a role in “facilitat[ing] 
the opt-in process by conditionally certifying a class and authorizing court-supervised 

notice to potential opt-in plaintiffs.” Chin v. Tile Shop, LLC, 

 
(D. Minn. 2014); Wang, 

, at *2 (“The sole consequence of conditional 
certification is the sending of court-approved written notice to employees.”) (quoting 
Genesis Healthcare Corp. v. Symczyk, 

 (2013)). Such facilitation promotes 
efficiency so that there can be “one proceeding of common issues of law and fact arising 
from the same alleged discriminatory activity,” rather than piecemeal lawsuits. Learing v. 
Anthem Companies, Inc., No. 21-cv-2283 (KMM/JFD), 

, at *6 (D. Minn. 

Feb. 28, 2022) (quoting Hoffmann-La Roche, 

).              
    A collective action can be conditionally certified if the potential plaintiffs are found 
similarly  situated,  and  courts  typically  follow  a  two-step  analysis  to  make  this 
determination as first set out in Lusardi v. Xerox Corp., 

 (D.N.J. 1987). See, 
e.g., Chin, 

; Babbitt, 

, at *2. Under this two-step 

process, a court first determines whether there is a “colorable basis for the[] claim that the 
putative class members were the victims of a single decision, policy, or plan.” Dege v. 
Hutchinson Tech., Inc., No. 6-cv-3754 (DWF/RLE), 

, at *1 (D. Minn. 
Feb. 22, 2007). This means that “a plaintiff must demonstrate that there is some factual 
nexus that connects [them] to other potential plaintiffs as victims of an unlawful practice,” 

Olukayode v. UnitedHealth Grp., No. 19-cv-1101 (DSD/HB), 

, at *2 
(D. Minn. Oct. 28, 2019) (quoting Sjoblom v. Charter Commc’ns, LLC, 

 (W.D. Wis. 2008)), and that if others who are similarly situated knew of the 
lawsuit, they would desire to opt in, see Chin, 

.   
    At this early stage, the initial burden on a plaintiff is low and courts are lenient. See 

Vallone v. CJS Sols. Grp., LLC, 

, 689 (D. Minn. 2020) (“The plaintiffs’ 
burden at the first stage is a light one.”), aff’d, 

, 

 (8th Cir. 
2021). If a plaintiff provides “some factual basis beyond the mere averments in their 
complaint,” that suffices because courts recognize there will be minimal evidence for class 
analysis at this stage. Frank, 

, at *2; Chin, 

. This 
is true even if that factual basis is disputed because the Court’s role at this stage is not to 
make credibility determinations or any findings of fact, see Quay v. Monarch Healthcare 

Mgmt. LLC, No. 21-cv-1796 (JRT/TNL), 

, at *3 (D. Minn. Aug. 3, 
2023), although courts should not “completely ignore” contrary evidence, Saleen v. Waste 
Mgmt., Inc., 

 (D. Minn. 2009). “[C]ourts usually rely on the 
pleadings and any affidavits submitted by the plaintiff to determine whether to grant 
conditional certification.” Deutsch v. My Pillow, Inc., No. 20-cv-318 (SRN/ECW), 

, at *5 (D. Minn. Dec. 15, 2020) (quoting Chin, 57 F. Supp. 3d at 1082–83). 
Such “assertions must be based on personal knowledge to  show that employees  are 
similarly situated.” Quay, 

, at *3.                        
    Once satisfied that the employees (or former employees) are similarly situated and 
that potential plaintiffs would be interested in joining the lawsuit, the case is conditionally 

certified for the purposes of notification and discovery. Dege, 

, at *1. At 
that point, “[c]ourts are encouraged to ‘monitor[ ] preparation and distribution of the 
notice’ to ‘ensure that it is timely, accurate, and informative.’” Quay, 

, 
at *3 (quoting Hoffmann-La Roche, 

) (alteration in original). 
    Only after notice is given and discovery closes does the Court then engage in the 

second, stricter step of the analysis to consider “the extent and consequences of disparate 
factual and employment settings of the individual plaintiffs, the various defenses available 
to the defendant that appear to be individual to each plaintiff, and other fairness and 
procedural considerations.” Burch v. Qwest Commc’ns Int’l, Inc., 

 (D. Minn. 2007) (quoting Dege, 

, at *1); Frank, 

, 
at *2.                                                                    
I.   PLAINTIFFS  HAVE   MET   THEIR  BURDEN   FOR  CONDITIONAL            
    CERTIFICATION.                                                       

    Plaintiffs argue that they and the putative collective members are similarly situated 
because, as employees hired through the H-2A program to perform similar job duties, they 
were all victims of Boehnke Waste’s common policies of misclassifying H-2A workers as 
exempt agricultural labor not eligible for overtime pay, and failing to pay them for their 
compensable travel time. They also claim that other individuals who are similarly situated 
to Plaintiffs are interested in joining the class.                        
    As to their first claim about misclassification, Plaintiffs argue that their work was 

not properly classified as agricultural because Boehnke Waste operated independently 
from its clients’ agricultural operations and the work its employees performed was not 
incident to or in conjunction with client farming. See Bayside Enterprises, Inc. v. N.L.R.B., 

, 299–300 (1977) (“The protections of the National Labor Relations Act 
extend only to ‘employees.’ Section 2(3) of the Act, 29 U.S.C. [§] 152(3) provides that the 

term ‘employee’ . . . shall not include any individual employed as an agricultural laborer . 
. . .”) (cleaned up); see also 

 (“Generally, a practice performed in 
connection with farming operations is within the statutory language only if it constitutes 
an established part of agriculture, is subordinate to the farming operations involved, and 
does not amount to an independent business.”). Plaintiffs claim this misclassification 
resulted in a common failure to pay overtime despite Plaintiffs and the putative class 
regularly working more than 40 hours per week.                            
    As to their second claim about compensable travel time, Plaintiffs argue that their 

travel time—between Boehnke Waste’s Minnesota headquarters and several worksites 
scattered  throughout  Iowa,  South  Dakota,  North  Dakota,  and  Minnesota—was  all 
compensable under the FLSA. See, e.g., 

 (“Time spent by an employee 
in travel as part of his principal activity, such as travel from job site to job site during the 
workday, must be counted as hours worked.”); 

 § 785.39 (“Travel away from home is 

clearly worktime when it cuts across the employee’s workday.”). Plaintiffs contend that 
despite the compensable nature of their travel for work, they were subject to Boehnke’s 
common failure to pay for travel time.                                    
    And finally, as to some evidence that others will be interested in joining in this 
collective litigation, Plaintiffs argue that they have shown this by the three additional 

members who have joined the lawsuit during its first five months of litigation. (See Docs. 
28-1 (Danie Johannes Smith and Abram Carl Meeding); 29 (Johannes Jacobus).) 
    Based  on  Plaintiffs’  allegations  and  evidence,  conditional  certification  is 
appropriate. In Rios-Gutierrez v. Briggs Traditional Turf Farm, Inc., 

 
(W.D. Mo. 2022), a district court within this Circuit granted conditional certification on 

similar facts:                                                            
         The named Plaintiffs  assert that they, like other members of the 
    putative FLSA opt-in class, were foreign workers brought into the United 
    States on H-2A visas for the stated purpose of performing agricultural work 
    on Defendants’ sod farms. . . . Plaintiffs allege that they were not paid 
    overtime, as agricultural work is exempt from overtime requirements. 

(a)(6). Plaintiffs allege, however, that instead of performing 
    agricultural work, they were directed to perform landscaping work, and 
    regularly worked for more than 40 hours in a week. Named Plaintiffs alleged 
    that  although  they  regularly  worked  more  than  40  hours  in  a  week, 
    Defendants rarely paid overtime, violating 

(a). . . . 

         Plaintiffs assert that Defendants had a policy of saying on the H-2A 
    visa  applications  that  their  employees  would  be  performing  exempt 
    agricultural work, and then directing those same employees to perform non-
    exempt work. Plaintiffs assert that this policy was applied equally to all 
    foreign nationals working for Defendants who came to the United States on 
    H-2A visas.                                                          

. Courts have also granted conditional certification in several other cases with 
some similarities in this Circuit. See, e.g., Resendiz-Ramirez v. P & H Forestry, LLC, 

 (W.D. Ark. 2007) (granting conditional certification for H-2A 
workers subject to an alleged “policy or practice of neither paying for nor reimbursing the 
various visa, visa processing, recruitment, and travel expenses associated with accepting 
H-2A employment with P & H Forestry, LLC”); Vallone, 437 F. Supp. 3d at 688 (granting 
conditional certification for workers who alleged they were not paid for the time spent 
traveling to and from remote locations to their worksites).               
    These cases align with out of Circuit authority, too. See, e.g., Gonzalez-Rodriguez 
v. Gracia, No. 5:21-cv-406 (BO), 

, at *5 (E.D.N.C. Feb. 6, 2023) 
(granting conditional certification for H-2A workers who alleged they were not reimbursed 
for visa-related expenses, including travel, and were not paid overtime wages owed); 
Magana-Munoz v.  W. Coast Berry Farms,  LLC, No.  5:20-cv-2087 (EJD), 

, at *6 (N.D. Cal. July 9, 2020) (granting conditional certification for workers who 
alleged defendant failed to compensate its H-2A workers for visa-related expenses, meal 
periods, and travel time).                                                
    Plaintiffs here have presented a colorable basis for their claim that they were subject 

to  the  same  unlawful  policies  by  Boehnke  Waste  because  they  all  claim  they  were 
misclassified based on the work they actually performed; were eligible to earn overtime 
pay for their regular work beyond 40 hours per week but received some or no overtime 
pay; and should have been compensated for travel time to, from, and between worksites 
and  Boehnke  Waste’s  headquarters.  Additionally,  Plaintiffs  have  established  there  is 

sufficient interest in the lawsuit from potential class members. On this front, “‘there is no 
numerical baseline that plaintiffs must meet,’ and ‘whether a plaintiff has shown sufficient 
opt-in interest is necessarily a case-specific inquiry that will turn on case-specific facts.’” 
Deutsch, 

, at *10  (quoting  Wang v. Jessy Corp., No.  17-cv-5069 
(JRT/HB), 

, at *5 (D.  Minn. Aug. 6, 2019)).  While “one or two 

interested persons usually seems not to be enough,” the guiding principle is that the 
plaintiff’s burden is not an onerous one. 

 (collecting cases). Here, there are four named 
Plaintiffs and the Court has received notices for three more members. Considering the 
communication challenges of locating individuals who may be spread across several states 
performing work as H-2A guestworkers, or who may have returned to their countries of 

origin outside of the United States, the fact that seven members of the collective already 
exist demonstrates sufficient interest to support conditional certification.  
    In  their  opposition  memorandum,  Defendants  urge  the  Court  to  follow  the 
framework adopted by a panel of the Fifth Circuit in Swales v. KLLM Transp. Servs., 
L.L.C., 

 (5th Cir. 2021)—which sets out a stricter standard for review of 
Plaintiffs’ motion, more akin to the review a court typically conducts when determining 
whether a Rule 23 opt-out class ought to be certified (or, as the case may be, whether a 

conditionally-certified FLSA collective ought to be decertified). Defendants argue that a 
Swales analysis maximizes efficiency by conducting a rigorous review at the outset of the 
notice process, and ensures that notice is only given to those who are most likely to be 
similarly situated, best fulfilling the intent of the FLSA. At the hearing on this matter, 
counsel for Defendants acknowledged that Swales has not been adopted by any court in 

this District. In fact, “[a] review of the case law since Swales . . . ‘reveals nearly universal 
negative treatment of Swales by other district courts in this Circuit.’” Babbitt, 

, at *4 (quoting Peck v. Mercy Health, No. 21-cv-834 (RLW), 

, 
at *3 (E.D. Mo. Feb. 7, 2023)) (collecting cases). Defendants suggest that Swales honors 
the discretion district courts have in determining how FLSA actions may best move 

forward  by  focusing  on  important  certification  questions  early,  since  those  may  be 
dispositive later. But a closer read of Swales demonstrates that the case is not at all about 
flexibility of district-court process; it requires inflexibility in insisting courts “rigorously 
enforce” the FLSA’s similarity requirement “at the outset of the litigation.” Swales, 

. It is difficult to understand how such a task could be undertaken before 

discovery occurs, although that appears to be the framework Swales endorses. Such a rigid 
approach is not consistent with Hoffman-LaRoche itself, as it “undermines the discretion” 
afforded to district courts in FLSA certification proceedings. Murphy, 

, 
at *11 n.4. This Court finds Swales unpersuasive and will not adopt it.   
    Defendants also argue that even under the more lenient two-step Lusardi test which 
is standard in this District and Circuit, the evidence Plaintiffs present does not establish 
common policies that violated state and federal law. But Plaintiffs’ evidence, based on 

limited discovery, plausibly supports their claims that they were classified as exempt from 
overtime protections under federal and state law, regularly worked more than 40 hours a 
week, regularly traveled as a part of their job duties, and were not compensated for 
overtime or travel time. This is sufficient to support conditional certification. Hoffman-
LaRoche, 493 U.S. at 485–86.                                              

    Finally, Defendants assert that conditional certification is inappropriate because 
some Plaintiffs are not adequate representatives of the collective,3 and because Defendants 
believe they will ultimately prevail on the merits. It is true that the leniency of this 
conditional-certification analysis does not mean that a court should “overlook those facts 
which pointedly reflect that a collective action would be improper.” Thompson v. Speedway 

SuperAmerica LLC, No. 8-cv-1107 (PJS/RLE), 

, at *10 (D. Minn. Jan. 
20, 2009). Yet the issues that Defendants rely on involve counter-allegations and averments 
that appear to have little to do with whether Plaintiffs were misclassified. Those matters, 
as well as a more searching inquiry into the merits, are reserved for consideration should 
Defendants move to decertify the collective after discovery is complete. See Chin, 

; Burch, 

.                         


3 Specifically, Defendants allege that two named Plaintiffs “have stolen hours” by not 
performing work while clocked in. (Doc. 26 at 23.)                        
II.  THE  COURT   GRANTS   PLAINTIFFS’  REQUEST   FOR  CONTACT            
    INFORMATION    AND  ADOPTS   PLAINTIFFS’  PROPOSED  NOTICE           
    WITH REVISIONS.4                                                     

    Courts considering FLSA matters have discretion to facilitate notice to potential 
plaintiffs so they can make informed and timely decisions about whether to participate in 
the suit. Hoffman-La Roche, 

. Because defendant-employers often have 
demographic information for their current and former employers, it is common for courts 
to order production of such information to plaintiff’s counsel to facilitate notice. See, e.g., 
Chapman v. Elec. Builders, Inc., No. 20-cv-1087 (PJS/LIB), 

, at *9 (D. 
Minn. Oct. 15, 2020).                                                     
    Plaintiffs assert that Boehnke Waste is required, by virtue of its participation in the 
H-2A visa program, to maintain its employees’ names, addresses, and telephone numbers. 
That is correct. See 

(j)(i) (requiring employer to maintain “worker’s 
permanent address, and, when available, the worker’s permanent email address and phone 

number(s)”). As such, there appears to be little burden on Defendants to provide this 
information.                                                              
    The H-2A work performed by Plaintiffs and the putative class is, by its nature, 
transient: it is performed over a relatively short period of time by noncitizens. As such, the 
Court agrees with Plaintiffs that providing notice by U.S. Mail may not be effective. 


4 In their lengthy opposition memorandum, Defendants devoted a single unsubstantive 
paragraph to the form and distribution of Plaintiffs’ proposed notice, asking the Court to 
delay notice until the parties meet and confer (again, see Doc. 34 (Meet and Confer 
Statement)). The point of conditional certification is to provide timely notice to affected 
workers. Genesis Healthcare, 

. The Court will not further delay notice, and 
instead has undertaken its own review of the form and protocol proposed by Plaintiffs. 
“Electronic communication is commonly utilized and is an appropriate, convenient, and 
efficient manner of communication with potential plaintiffs in FLSA actions.” Middleton 
v. Hempstead Cnty., Ark., No. 4:18-cv-4112 (SOH), 

, at *4 (W.D. Ark. 

Aug. 21, 2019). Given the circumstances of this case, including evidence that Boehnke 
Waste communicated with workers via telephone, text-messaging services, and email, the 
Court finds that electronic notice is appropriate here, and grants Plaintiffs’ request to send 
notice via text message (regardless of whether that be by SMS or an alternative messaging 
service such as WhatsApp) and email, as well as by U.S. Mail, as set forth further below. 

    The Court has also considered how putative members may demonstrate consent to 
join the action. FLSA consent must generally be in writing. 

. However, 
consent may be made by electronic submission and with electronic signatures, provided 
there are no concerns about the integrity of the consent. See, e.g., Abdul-Ahad v. Associated 
Courier Inc., No. 20-cv-607 (HB), 

, at *3 (D. Minn. March 26, 2021) 

(permitting class-settlement releases to be  signed “either in hard  copy (originals not 
required) or using docusign or comparable software”); Fritz v. Corizon Health, Inc., No. 
19-cv-3365 (SRB), 

, at *5-6 (W.D. Mo. Nov. 23, 2020) (approving 
notice indicating FLSA opt-in plaintiffs could “sign and return by Docusign or other 
electronic signature method,” and allowing consent forms to be executed “via Docusign, a 

signed PDF document that is emailed, a faxed signature, or a jotform.com document”) 
(quotation omitted); Mahoney v. CommonSpirit Health, No. 8:21-cv-23 (JFB), 

, at *6 (D. Neb. Dec. 14, 2021) (approving use of internet links to FLSA electronic 
notices and consents to join and use of Docusign for facilitating collection and submission 
of consents). Particularly given the realities of life for the putative collective members, 
including the potential for extended periods of H-2A work away from their permanent 
residences, the Court finds that electronic consent is appropriate here, whether made via 

DocuSign or another reliable means; as well as consent demonstrated through signed forms 
transmitted via fax, email, or traditional, U.S. Mail.                    
    Finally, the Court considers the form of notice provided by Plaintiffs. Plaintiffs 
proposed two notices: (1) a long form notice of action with attached consent form (Doc. 
34-4) (“Long Form Notice”), and (2) a short form notice that would be sent via text 

message with a link to the Long Form Notice (Doc. 34-5) (“Text Notice”). Each notice is 
generally appropriate,5 but the Long Form Notice must be amended slightly. In the Long 
Form Notice, Plaintiffs propose a 180-day opt-in period. (See Doc. 34-4 at 2 (“Option 1: 
RETURN SIGNED FORM”).) In their memorandum, Plaintiffs suggest this lengthy period 
is necessary because putative class members might be hard to reach and might have a 

limited ability to communicate. The Court has addressed those concerns through adopting 
a notice-and-consent protocol that allows electronic communications though common 

5 The Court notes that each proposed notice generically suggests the relevant claim period 
is “any time between 2021 and 2024.” (Docs. 34-4 at 1; 34-5 at 1.) That is incorrect. While 
FLSA claims such as those pled here may have a 3-year statute of limitations, 

(a), that lookback period does not likely encompass all of 2021. See Mahoney, 

, at *4 (“The notice period under the FLSA generally should be measured 
from the date of the court’s order granting the motion for conditional certification, not from 
the date the complaint was filed.”). Nonetheless, statute-of-limitations challenges to any 
opt-in plaintiffs’ claims “can be addressed subsequent to the completion of discovery 
during the second phase of the collective action certification process.” Anglada v. Linens 
‘N Things, Inc., No. 6-cv-12901 (CM/LMS), 

, at *9 n.5 (S.D.N.Y. Apr. 
26, 2007), R. and R. adopted, (S.D.N.Y. May 22, 2007).                    
means. With those adjustments, a 180-day opt-in period is too long. Accordingly the Long 
Form Notice must be amended to indicate that the signed consent form must be returned 
120 days from the date of mailing notice. Additionally, the Long Form Notice should be 

amended to indicate in the box following “Option 1: RETURN SIGNED FORM” that the 
consent form may be submitted electronically through DocuSign or other reliable means,6 
as well as provide instructions for how to access such means. This amendment shall be 
added to Page two of the proposed Consent Form (Doc. 34-4 at 4) as well.  

    Based on all of the files, records, and proceedings above, IT IS ORDERED that: 
 1.   Plaintiffs’ Motion to Certify Conditional Class (Doc. 30) is GRANTED, and 
      this action is now a conditional collective action under the FLSA, 

(b) for all H-2A workers employed by Boehnke Waste Handling, LLC, at 
      any time from 2021 through 2024;                                   

 2.   Plaintiffs’  Proposed  Notice  and  Consent  Forms  are  ADOPTED  with  the 
      amendments referenced above, for distribution to the putative class members as 
      defined above;                                                     

 3.   Plaintiffs, through counsel, are directed to distribute the approved Notices to the 
      putative class members via U.S. Mail and text message (including, but not 
      limited  to,  utilizing  SMS  and  WhatsApp  messaging  services)  and,  if  class 
      members fail to respond to such notice within 30 days, follow up notice via 
      email;                                                             

 4.   Defendants are directed to post the approved Long Form Notice in all common 
      areas in all housing locations currently occupied by its H-2A workers within 14 
      days of this Order;                                                

 5.   Defendants are directed to produce to Plaintiffs’ counsel, within 14 days of this 
      Order, the names, dates of employment, last-known addresses, email addresses, 

6 At the hearing on this matter, Plaintiffs’ counsel indicated that his firm used DocuSign 
but was unclear whether it could be utilized for consent forms in this matter.  
     and any known telephone or messaging-service numbers  for putative class 
     members; and                                                       

6.   Putative class members’ consent forms must be filed with the Court no later than 
     120 days from the date of this Order.                              

Date: October 3, 2024               s/Douglas L. Micko                   
                                  DOUGLAS L. MICKO                      
                                  United States Magistrate Judge        

                 UNITED STATES DISTRICT COURT                            
                    DISTRICT OF MINNESOTA                                


Peterus  Beukes,  Stephanus  De  Klerk,  Case No. 24-cv-828 (JWB/DLM)    
Cornelius  Engelbrecht,  and  Gabriel  Du                                
Plessis, on behalf of themselves and others                              
similarly situated,                                                      

               Plaintiffs,       ORDER GRANTING MOTION FOR               
                                 CONDITIONAL CERTIFICATION               
v.                                    AND FOR NOTICE TO                  
                                   PUTATIVE CLASSMEMBERS                 
Chad  J.  Boehnke  and  Boehnke  Waste                                   
Handling, LLC,                                                           

               Defendants.                                               


    Plaintiffs  are  laborers.  Each  of  them  worked  for  Defendant  Boehnke  Waste 
Handling, LLC (“Boehnke Waste”) in the recent past. Defendant Chad J. Boehnke is one 
of Boehnke Waste’s principals. Boehnke Waste is in the business of processing manure for 
farms and ranches throughout the Midwest. Plaintiffs’ jobs included pumping, processing, 
hauling, and spreading that manure. Plaintiffs allege that Boehnke Waste took advantage 
of their noncitizen, H-2A Temporary Agricultural Worker statuses by underpaying them 
in violation of the Fair Labor Standards Act (“FLSA”), 

 et seq. Plaintiffs 
have moved this Court for an order conditionally certifying a class of similarly-situated 
workers and approving the provision of notice of this lawsuit to those similarly-situated 
workers. Defendants oppose Plaintiffs’ motion, asserting that a searching inquiry into the 
facts underlying this matter would demonstrate that: Plaintiffs are not similarly situated to 
those they seek to represent; Plaintiffs will not be adequate class representatives; and 
Plaintiffs’ claims will fail on the merits.                               
    The Court held a hearing on this matter on September 5, 2024. Based on the parties’ 

submissions, as well as the arguments presented at hearing, the Court finds Plaintiffs’ 
position well taken and grants their motion for conditional certification. Additionally, the 
Court approves Plaintiffs’ proposed notice with certain adjustments designed to ensure 
notice is timely received and responded to. As described more fully below, it has long been 
recognized in this district and throughout the country that conditional certification is not a 

high  bar,  and  one  which  Plaintiffs  easily  clear  here.  The  Court  is  unpersuaded  by 
Defendants’ arguments to the contrary, and declines their invitation to adopt an out-of-
circuit framework which would impose a more rigorous analysis at this early stage of 
litigation. That is not the point of conditional certification, which, at its core, is designed 
to ensure that putative FLSA collective action members receive early and effective notice 

of their potential claims.                                                
                         BACKGROUND                                      
    Plaintiffs Peterus Beukes, Stephanus De Klerk, Gabriel Du Plessis, and Cornelius 
Englebrecht—on behalf of all other similarly situated workers—brought this action against 
their former employer, Boehnke Waste, and one of its principals, Chad J. Boehnke, alleging 

several  employment-related  claims.  (See  generally  Doc.  19  (operative  amended 
complaint).) Boehnke Waste is a company that contracted with farms and ranches to 
perform manure management and other related services. (Doc. 25 ¶ 2.) Plaintiffs were part 
of a federal H-2A nonimmigrant guestworker visa program established by the Immigration 
Reform  and  Control  Act  of  1986.  (Doc.  19  ¶¶  53-59;  see  also  

 
(empowering  the  Secretary  of  Labor  to  “issue  regulations  regarding  the  issuance  of 
temporary  labor  certifications”).)  This  program  allows  employers  to  recruit  and  hire 

nonimmigrant aliens as temporary agricultural laborers when there are certified shortages 
of domestic workers. 

 § 655.1(a)(1); see also U.S. Department of Labor (“DOL”), H-2A 
Temporary  Agricultural  Program,  https://perma.cc/5RXN-QJTY  (last  visited  Oct.  3, 
2024). The relevant regulations provide that “H-2A employers may also be subject to the 
FLSA” and that “[t]he FLSA operates independently of the H-2A program and has specific 

requirements  that  address  payment  of  wages,  including  deductions  from  wages,  the 
payment of Federal minimum wage and payment of overtime.” 

(e). 
     Plaintiffs claim that Boehnke Waste, an LLC owned by Mr. Boehnke, applied for 
at least 58 H-2A workers, representing in their applications that the guestworkers would 
perform agricultural work operating farm equipment at various worksites, many not owned 

by Mr. Boehnke. Plaintiffs were among these H-2A workers. (See generally Doc. 19.) They 
claim that instead of the agricultural work Boehnke Waste represented its H-2A workers 
would perform, Boehnke Waste actually sent Plaintiffs to remote dairies, feedlots, ranches, 
and farms throughout Minnesota, Iowa, South Dakota, and North Dakota to perform 
mechanical equipment repair, equipment and manure hauling on public roads, manure 

pumping from holding pits, and construction and demolition projects. (Id. ¶¶ 89-100.) 
Plaintiffs claim that because this work was not agricultural, it was overtime-eligible work1 

1 Agricultural work is generally exempt from the FLSA’s overtime pay requirements. See 

(b)(13).                                                   
for which they were owed overtime pay. (Id. ¶¶ 140-45.) Additionally, Plaintiffs allege that 
they were not paid for their compensable time traveling to, from, and between worksites 
and the company’s Minnesota headquarters during normal working hours.2 (Id. ¶¶ 131-35.)  

    As this federal action got underway, the Court held a Rule 16 pretrial conference 
and set a limited pretrial scheduling order to govern the parties’ limited written discovery. 
(Doc. 27.) Since that time, three new members—Abram Carl Meeding, Danie Johannes 
Smith, and Johannes Jacobus—have filed notices seeking to opt in to this lawsuit. (Docs. 
28, 29.)                                                                  

    Plaintiffs filed their current motion seeking conditional certification on August 22, 
2024. (Docs. 30 (Plaintiffs’ motion), 32 (Plaintiffs’ memorandum), 33 (Plaintiffs’ Murray 
declaration with exhibits).) They ask the Court to order conditional certification of a 
collective action, authorize notice to putative members through the most expedient media, 
require Defendants to post the approved notice in housing locations occupied by potential 

collective members, order Defendants to provide a list of collective members with names, 
addresses, telephone numbers, emails, and dates of employment, and set an opt-in deadline 
of  180  days.  Plaintiffs  propose  to  define  the  FLSA  collective  as:  all  H-2A  workers 
employed by Boehnke Waste Handling, LLC at any time from 2021 through 2024. 
    In support of their motion, Plaintiffs submit declarations from three individuals 

(Danie  Smith,  Abram  Carl  Meeding,  and  Johannes  Jacobus),  detailing  their  job 


2 Plaintiffs raise a number of additional employment-related claims, but this Court’s 
discussion is limited to the issues relevant to consideration of their FLSA conditional 
certification motion.                                                     
descriptions,  salaries,  duties,  and  hours.  (Docs.  33–33-3.)  The  declarations  aver  the 
following similar facts:                                                  

      •  The three individuals were part of the H-2A program.            
      •  All three worked for Boehnke Waste and Mr. Boehnke in 2022 (Smith, 
         Meeding) or 2023 (Jacobus).                                     
      •  All three performed the same work: manure handling and related work at 

         various dairies, feedlots, and other sites across several states, most or all of 
         which were not owned by Boehnke Waste or Mr. Boehnke.           
      •  Each individual regularly worked more than 40 hours in a week.  
      •  Despite working these hours, individuals were rarely paid overtime for the 

         hours worked over 40 hours per week.                            
      •  Despite  extensive  traveling  between  worksites  and  Boehnke  Waste’s 
         headquarters in Minnesota, none of the individuals was paid for the hours 
         spent traveling.                                                

      •  All of the individuals use email and WhatsApp for their most reliable means 
         of  communication  because  they  are  either  regularly  traveling  for  their 
         ongoing work as H-2A guestworkers, or because they have returned to their 
         country of origin outside of the United States.                 
    Plaintiffs argue that these attestations, combined with the allegations in the amended 

complaint, satisfy their burden to demonstrate that the putative collective members are 
similarly situated and that the matter should be conditionally certified as a collective.  
    Defendants  oppose  the  motion.  (Docs.  36  (Defendants’  memorandum),  37 
(Defendants’ Reynoso declaration with exhibits).) They contend that named plaintiffs are 
not similarly situated to nor adequate representatives of the putative class. Defendants 

further assert that the plaintiffs’ misclassification and unpaid travel time claims deserve a 
searching inquiry before any certification decision, conditional or otherwise. Recognizing 
that most of these arguments are inconsistent with the conditional certification protocol set 
forth first in Lusardi v. Xerox Corp., 

 (D.N.J. 1987), and adopted by myriad 
courts since, see, e.g., Babbitt v. Target Corp., No. 20-cv-490 (DWF/ECW), 

, at *2-4 (D. Minn. March 16, 2023), Frank v. Gold’n Plump Poultry, Inc., No. 4-
cv-1018 (JNE/RLE), 

, at *2-5 (D. Minn. Sept. 14, 2005), Defendants 
ask the Court to abandon the well established, two-step certification protocol and instead 
use a more rigorous, merits-based inquiry at this stage, as was done in Swales v. KLLM 
Transp. Servs., LLC, 

 (5th Cir. 2021). Defendants have provided no 

alternative to Plaintiffs’ proposed notice, instead asking the Court to give them more time 
to meet and confer with Plaintiffs about notice if the Court grants conditional certification. 
                           ANALYSIS                                      
    Under the FLSA, “any one or more employees” may bring a collective action 
against  an  employer  for  uncompensated  hours  worked  for  “themselves  and  other 

employees similarly situated.” 

(b); see also Murphy v. Lab. Source, LLC, 
No. 19-cv-1929 (ECW), 

, at *11 (D. Minn. Feb. 8, 2022). The FLSA 
collective action is a vehicle intended to lower the litigation cost to individual class 
members who seek to vindicate their right to fair compensation for their labor. Hoffmann-
La Roche Inc. v. Sperling, 

 (1989). Such collective actions allow a 
plaintiff who alleges wage and hour violations to assert claims not only for themselves, but 
also for others similarly situated. See 

(b), 256. Unlike class actions 

brought under Federal Rule of Civil Procedure 23 where members must “opt-out” or be 
bound  by  the  lawsuit’s  outcome,  the  FLSA  collective  action  process  is  reversed: 
individuals must “opt-in” to be a part of the lawsuit. See, e.g., Smith v. Heartland Auto. 
Servs., Inc., 

 (D. Minn. 2005). Thus, providing potential 
plaintiffs with timely notice of the putative collective action is essential to ensure they have 

a chance to affirmatively “opt-in.” Wang v. Jessy Corp., No. 17-cv-5069 (JRT/HB), 

, at *2 (D. Minn. Oct. 30, 2018).                               
    The FLSA does not mandate any  particular process for providing notice of a 
collective action, see 

(b), but the Supreme Court has interpreted the statute 
to grant courts the authority to manage the process, see Hoffmann-La Roche, 493 U.S. at 

170–71 (“Section 216(b)’s affirmative permission for employees to proceed on behalf of 
those similarly situated must grant the court the requisite procedural authority to manage 
the process of joining multiple parties . . . to assure that the task is accomplished in an 
efficient and proper way”). As a result, federal courts have played a role in “facilitat[ing] 
the opt-in process by conditionally certifying a class and authorizing court-supervised 

notice to potential opt-in plaintiffs.” Chin v. Tile Shop, LLC, 

 
(D. Minn. 2014); Wang, 

, at *2 (“The sole consequence of conditional 
certification is the sending of court-approved written notice to employees.”) (quoting 
Genesis Healthcare Corp. v. Symczyk, 

 (2013)). Such facilitation promotes 
efficiency so that there can be “one proceeding of common issues of law and fact arising 
from the same alleged discriminatory activity,” rather than piecemeal lawsuits. Learing v. 
Anthem Companies, Inc., No. 21-cv-2283 (KMM/JFD), 

, at *6 (D. Minn. 

Feb. 28, 2022) (quoting Hoffmann-La Roche, 

).              
    A collective action can be conditionally certified if the potential plaintiffs are found 
similarly  situated,  and  courts  typically  follow  a  two-step  analysis  to  make  this 
determination as first set out in Lusardi v. Xerox Corp., 

 (D.N.J. 1987). See, 
e.g., Chin, 

; Babbitt, 

, at *2. Under this two-step 

process, a court first determines whether there is a “colorable basis for the[] claim that the 
putative class members were the victims of a single decision, policy, or plan.” Dege v. 
Hutchinson Tech., Inc., No. 6-cv-3754 (DWF/RLE), 

, at *1 (D. Minn. 
Feb. 22, 2007). This means that “a plaintiff must demonstrate that there is some factual 
nexus that connects [them] to other potential plaintiffs as victims of an unlawful practice,” 

Olukayode v. UnitedHealth Grp., No. 19-cv-1101 (DSD/HB), 

, at *2 
(D. Minn. Oct. 28, 2019) (quoting Sjoblom v. Charter Commc’ns, LLC, 

 (W.D. Wis. 2008)), and that if others who are similarly situated knew of the 
lawsuit, they would desire to opt in, see Chin, 

.   
    At this early stage, the initial burden on a plaintiff is low and courts are lenient. See 

Vallone v. CJS Sols. Grp., LLC, 

, 689 (D. Minn. 2020) (“The plaintiffs’ 
burden at the first stage is a light one.”), aff’d, 

, 

 (8th Cir. 
2021). If a plaintiff provides “some factual basis beyond the mere averments in their 
complaint,” that suffices because courts recognize there will be minimal evidence for class 
analysis at this stage. Frank, 

, at *2; Chin, 

. This 
is true even if that factual basis is disputed because the Court’s role at this stage is not to 
make credibility determinations or any findings of fact, see Quay v. Monarch Healthcare 

Mgmt. LLC, No. 21-cv-1796 (JRT/TNL), 

, at *3 (D. Minn. Aug. 3, 
2023), although courts should not “completely ignore” contrary evidence, Saleen v. Waste 
Mgmt., Inc., 

 (D. Minn. 2009). “[C]ourts usually rely on the 
pleadings and any affidavits submitted by the plaintiff to determine whether to grant 
conditional certification.” Deutsch v. My Pillow, Inc., No. 20-cv-318 (SRN/ECW), 

, at *5 (D. Minn. Dec. 15, 2020) (quoting Chin, 57 F. Supp. 3d at 1082–83). 
Such “assertions must be based on personal knowledge to  show that employees  are 
similarly situated.” Quay, 

, at *3.                        
    Once satisfied that the employees (or former employees) are similarly situated and 
that potential plaintiffs would be interested in joining the lawsuit, the case is conditionally 

certified for the purposes of notification and discovery. Dege, 

, at *1. At 
that point, “[c]ourts are encouraged to ‘monitor[ ] preparation and distribution of the 
notice’ to ‘ensure that it is timely, accurate, and informative.’” Quay, 

, 
at *3 (quoting Hoffmann-La Roche, 

) (alteration in original). 
    Only after notice is given and discovery closes does the Court then engage in the 

second, stricter step of the analysis to consider “the extent and consequences of disparate 
factual and employment settings of the individual plaintiffs, the various defenses available 
to the defendant that appear to be individual to each plaintiff, and other fairness and 
procedural considerations.” Burch v. Qwest Commc’ns Int’l, Inc., 

 (D. Minn. 2007) (quoting Dege, 

, at *1); Frank, 

, 
at *2.                                                                    
I.   PLAINTIFFS  HAVE   MET   THEIR  BURDEN   FOR  CONDITIONAL            
    CERTIFICATION.                                                       

    Plaintiffs argue that they and the putative collective members are similarly situated 
because, as employees hired through the H-2A program to perform similar job duties, they 
were all victims of Boehnke Waste’s common policies of misclassifying H-2A workers as 
exempt agricultural labor not eligible for overtime pay, and failing to pay them for their 
compensable travel time. They also claim that other individuals who are similarly situated 
to Plaintiffs are interested in joining the class.                        
    As to their first claim about misclassification, Plaintiffs argue that their work was 

not properly classified as agricultural because Boehnke Waste operated independently 
from its clients’ agricultural operations and the work its employees performed was not 
incident to or in conjunction with client farming. See Bayside Enterprises, Inc. v. N.L.R.B., 

, 299–300 (1977) (“The protections of the National Labor Relations Act 
extend only to ‘employees.’ Section 2(3) of the Act, 29 U.S.C. [§] 152(3) provides that the 

term ‘employee’ . . . shall not include any individual employed as an agricultural laborer . 
. . .”) (cleaned up); see also 

 (“Generally, a practice performed in 
connection with farming operations is within the statutory language only if it constitutes 
an established part of agriculture, is subordinate to the farming operations involved, and 
does not amount to an independent business.”). Plaintiffs claim this misclassification 
resulted in a common failure to pay overtime despite Plaintiffs and the putative class 
regularly working more than 40 hours per week.                            
    As to their second claim about compensable travel time, Plaintiffs argue that their 

travel time—between Boehnke Waste’s Minnesota headquarters and several worksites 
scattered  throughout  Iowa,  South  Dakota,  North  Dakota,  and  Minnesota—was  all 
compensable under the FLSA. See, e.g., 

 (“Time spent by an employee 
in travel as part of his principal activity, such as travel from job site to job site during the 
workday, must be counted as hours worked.”); 

 § 785.39 (“Travel away from home is 

clearly worktime when it cuts across the employee’s workday.”). Plaintiffs contend that 
despite the compensable nature of their travel for work, they were subject to Boehnke’s 
common failure to pay for travel time.                                    
    And finally, as to some evidence that others will be interested in joining in this 
collective litigation, Plaintiffs argue that they have shown this by the three additional 

members who have joined the lawsuit during its first five months of litigation. (See Docs. 
28-1 (Danie Johannes Smith and Abram Carl Meeding); 29 (Johannes Jacobus).) 
    Based  on  Plaintiffs’  allegations  and  evidence,  conditional  certification  is 
appropriate. In Rios-Gutierrez v. Briggs Traditional Turf Farm, Inc., 

 
(W.D. Mo. 2022), a district court within this Circuit granted conditional certification on 

similar facts:                                                            
         The named Plaintiffs  assert that they, like other members of the 
    putative FLSA opt-in class, were foreign workers brought into the United 
    States on H-2A visas for the stated purpose of performing agricultural work 
    on Defendants’ sod farms. . . . Plaintiffs allege that they were not paid 
    overtime, as agricultural work is exempt from overtime requirements. 

(a)(6). Plaintiffs allege, however, that instead of performing 
    agricultural work, they were directed to perform landscaping work, and 
    regularly worked for more than 40 hours in a week. Named Plaintiffs alleged 
    that  although  they  regularly  worked  more  than  40  hours  in  a  week, 
    Defendants rarely paid overtime, violating 

(a). . . . 

         Plaintiffs assert that Defendants had a policy of saying on the H-2A 
    visa  applications  that  their  employees  would  be  performing  exempt 
    agricultural work, and then directing those same employees to perform non-
    exempt work. Plaintiffs assert that this policy was applied equally to all 
    foreign nationals working for Defendants who came to the United States on 
    H-2A visas.                                                          

. Courts have also granted conditional certification in several other cases with 
some similarities in this Circuit. See, e.g., Resendiz-Ramirez v. P & H Forestry, LLC, 

 (W.D. Ark. 2007) (granting conditional certification for H-2A 
workers subject to an alleged “policy or practice of neither paying for nor reimbursing the 
various visa, visa processing, recruitment, and travel expenses associated with accepting 
H-2A employment with P & H Forestry, LLC”); Vallone, 437 F. Supp. 3d at 688 (granting 
conditional certification for workers who alleged they were not paid for the time spent 
traveling to and from remote locations to their worksites).               
    These cases align with out of Circuit authority, too. See, e.g., Gonzalez-Rodriguez 
v. Gracia, No. 5:21-cv-406 (BO), 

, at *5 (E.D.N.C. Feb. 6, 2023) 
(granting conditional certification for H-2A workers who alleged they were not reimbursed 
for visa-related expenses, including travel, and were not paid overtime wages owed); 
Magana-Munoz v.  W. Coast Berry Farms,  LLC, No.  5:20-cv-2087 (EJD), 

, at *6 (N.D. Cal. July 9, 2020) (granting conditional certification for workers who 
alleged defendant failed to compensate its H-2A workers for visa-related expenses, meal 
periods, and travel time).                                                
    Plaintiffs here have presented a colorable basis for their claim that they were subject 

to  the  same  unlawful  policies  by  Boehnke  Waste  because  they  all  claim  they  were 
misclassified based on the work they actually performed; were eligible to earn overtime 
pay for their regular work beyond 40 hours per week but received some or no overtime 
pay; and should have been compensated for travel time to, from, and between worksites 
and  Boehnke  Waste’s  headquarters.  Additionally,  Plaintiffs  have  established  there  is 

sufficient interest in the lawsuit from potential class members. On this front, “‘there is no 
numerical baseline that plaintiffs must meet,’ and ‘whether a plaintiff has shown sufficient 
opt-in interest is necessarily a case-specific inquiry that will turn on case-specific facts.’” 
Deutsch, 

, at *10  (quoting  Wang v. Jessy Corp., No.  17-cv-5069 
(JRT/HB), 

, at *5 (D.  Minn. Aug. 6, 2019)).  While “one or two 

interested persons usually seems not to be enough,” the guiding principle is that the 
plaintiff’s burden is not an onerous one. 

 (collecting cases). Here, there are four named 
Plaintiffs and the Court has received notices for three more members. Considering the 
communication challenges of locating individuals who may be spread across several states 
performing work as H-2A guestworkers, or who may have returned to their countries of 

origin outside of the United States, the fact that seven members of the collective already 
exist demonstrates sufficient interest to support conditional certification.  
    In  their  opposition  memorandum,  Defendants  urge  the  Court  to  follow  the 
framework adopted by a panel of the Fifth Circuit in Swales v. KLLM Transp. Servs., 
L.L.C., 

 (5th Cir. 2021)—which sets out a stricter standard for review of 
Plaintiffs’ motion, more akin to the review a court typically conducts when determining 
whether a Rule 23 opt-out class ought to be certified (or, as the case may be, whether a 

conditionally-certified FLSA collective ought to be decertified). Defendants argue that a 
Swales analysis maximizes efficiency by conducting a rigorous review at the outset of the 
notice process, and ensures that notice is only given to those who are most likely to be 
similarly situated, best fulfilling the intent of the FLSA. At the hearing on this matter, 
counsel for Defendants acknowledged that Swales has not been adopted by any court in 

this District. In fact, “[a] review of the case law since Swales . . . ‘reveals nearly universal 
negative treatment of Swales by other district courts in this Circuit.’” Babbitt, 

, at *4 (quoting Peck v. Mercy Health, No. 21-cv-834 (RLW), 

, 
at *3 (E.D. Mo. Feb. 7, 2023)) (collecting cases). Defendants suggest that Swales honors 
the discretion district courts have in determining how FLSA actions may best move 

forward  by  focusing  on  important  certification  questions  early,  since  those  may  be 
dispositive later. But a closer read of Swales demonstrates that the case is not at all about 
flexibility of district-court process; it requires inflexibility in insisting courts “rigorously 
enforce” the FLSA’s similarity requirement “at the outset of the litigation.” Swales, 

. It is difficult to understand how such a task could be undertaken before 

discovery occurs, although that appears to be the framework Swales endorses. Such a rigid 
approach is not consistent with Hoffman-LaRoche itself, as it “undermines the discretion” 
afforded to district courts in FLSA certification proceedings. Murphy, 

, 
at *11 n.4. This Court finds Swales unpersuasive and will not adopt it.   
    Defendants also argue that even under the more lenient two-step Lusardi test which 
is standard in this District and Circuit, the evidence Plaintiffs present does not establish 
common policies that violated state and federal law. But Plaintiffs’ evidence, based on 

limited discovery, plausibly supports their claims that they were classified as exempt from 
overtime protections under federal and state law, regularly worked more than 40 hours a 
week, regularly traveled as a part of their job duties, and were not compensated for 
overtime or travel time. This is sufficient to support conditional certification. Hoffman-
LaRoche, 493 U.S. at 485–86.                                              

    Finally, Defendants assert that conditional certification is inappropriate because 
some Plaintiffs are not adequate representatives of the collective,3 and because Defendants 
believe they will ultimately prevail on the merits. It is true that the leniency of this 
conditional-certification analysis does not mean that a court should “overlook those facts 
which pointedly reflect that a collective action would be improper.” Thompson v. Speedway 

SuperAmerica LLC, No. 8-cv-1107 (PJS/RLE), 

, at *10 (D. Minn. Jan. 
20, 2009). Yet the issues that Defendants rely on involve counter-allegations and averments 
that appear to have little to do with whether Plaintiffs were misclassified. Those matters, 
as well as a more searching inquiry into the merits, are reserved for consideration should 
Defendants move to decertify the collective after discovery is complete. See Chin, 

; Burch, 

.                         


3 Specifically, Defendants allege that two named Plaintiffs “have stolen hours” by not 
performing work while clocked in. (Doc. 26 at 23.)                        
II.  THE  COURT   GRANTS   PLAINTIFFS’  REQUEST   FOR  CONTACT            
    INFORMATION    AND  ADOPTS   PLAINTIFFS’  PROPOSED  NOTICE           
    WITH REVISIONS.4                                                     

    Courts considering FLSA matters have discretion to facilitate notice to potential 
plaintiffs so they can make informed and timely decisions about whether to participate in 
the suit. Hoffman-La Roche, 

. Because defendant-employers often have 
demographic information for their current and former employers, it is common for courts 
to order production of such information to plaintiff’s counsel to facilitate notice. See, e.g., 
Chapman v. Elec. Builders, Inc., No. 20-cv-1087 (PJS/LIB), 

, at *9 (D. 
Minn. Oct. 15, 2020).                                                     
    Plaintiffs assert that Boehnke Waste is required, by virtue of its participation in the 
H-2A visa program, to maintain its employees’ names, addresses, and telephone numbers. 
That is correct. See 

(j)(i) (requiring employer to maintain “worker’s 
permanent address, and, when available, the worker’s permanent email address and phone 

number(s)”). As such, there appears to be little burden on Defendants to provide this 
information.                                                              
    The H-2A work performed by Plaintiffs and the putative class is, by its nature, 
transient: it is performed over a relatively short period of time by noncitizens. As such, the 
Court agrees with Plaintiffs that providing notice by U.S. Mail may not be effective. 


4 In their lengthy opposition memorandum, Defendants devoted a single unsubstantive 
paragraph to the form and distribution of Plaintiffs’ proposed notice, asking the Court to 
delay notice until the parties meet and confer (again, see Doc. 34 (Meet and Confer 
Statement)). The point of conditional certification is to provide timely notice to affected 
workers. Genesis Healthcare, 

. The Court will not further delay notice, and 
instead has undertaken its own review of the form and protocol proposed by Plaintiffs. 
“Electronic communication is commonly utilized and is an appropriate, convenient, and 
efficient manner of communication with potential plaintiffs in FLSA actions.” Middleton 
v. Hempstead Cnty., Ark., No. 4:18-cv-4112 (SOH), 

, at *4 (W.D. Ark. 

Aug. 21, 2019). Given the circumstances of this case, including evidence that Boehnke 
Waste communicated with workers via telephone, text-messaging services, and email, the 
Court finds that electronic notice is appropriate here, and grants Plaintiffs’ request to send 
notice via text message (regardless of whether that be by SMS or an alternative messaging 
service such as WhatsApp) and email, as well as by U.S. Mail, as set forth further below. 

    The Court has also considered how putative members may demonstrate consent to 
join the action. FLSA consent must generally be in writing. 

. However, 
consent may be made by electronic submission and with electronic signatures, provided 
there are no concerns about the integrity of the consent. See, e.g., Abdul-Ahad v. Associated 
Courier Inc., No. 20-cv-607 (HB), 

, at *3 (D. Minn. March 26, 2021) 

(permitting class-settlement releases to be  signed “either in hard  copy (originals not 
required) or using docusign or comparable software”); Fritz v. Corizon Health, Inc., No. 
19-cv-3365 (SRB), 

, at *5-6 (W.D. Mo. Nov. 23, 2020) (approving 
notice indicating FLSA opt-in plaintiffs could “sign and return by Docusign or other 
electronic signature method,” and allowing consent forms to be executed “via Docusign, a 

signed PDF document that is emailed, a faxed signature, or a jotform.com document”) 
(quotation omitted); Mahoney v. CommonSpirit Health, No. 8:21-cv-23 (JFB), 

, at *6 (D. Neb. Dec. 14, 2021) (approving use of internet links to FLSA electronic 
notices and consents to join and use of Docusign for facilitating collection and submission 
of consents). Particularly given the realities of life for the putative collective members, 
including the potential for extended periods of H-2A work away from their permanent 
residences, the Court finds that electronic consent is appropriate here, whether made via 

DocuSign or another reliable means; as well as consent demonstrated through signed forms 
transmitted via fax, email, or traditional, U.S. Mail.                    
    Finally, the Court considers the form of notice provided by Plaintiffs. Plaintiffs 
proposed two notices: (1) a long form notice of action with attached consent form (Doc. 
34-4) (“Long Form Notice”), and (2) a short form notice that would be sent via text 

message with a link to the Long Form Notice (Doc. 34-5) (“Text Notice”). Each notice is 
generally appropriate,5 but the Long Form Notice must be amended slightly. In the Long 
Form Notice, Plaintiffs propose a 180-day opt-in period. (See Doc. 34-4 at 2 (“Option 1: 
RETURN SIGNED FORM”).) In their memorandum, Plaintiffs suggest this lengthy period 
is necessary because putative class members might be hard to reach and might have a 

limited ability to communicate. The Court has addressed those concerns through adopting 
a notice-and-consent protocol that allows electronic communications though common 

5 The Court notes that each proposed notice generically suggests the relevant claim period 
is “any time between 2021 and 2024.” (Docs. 34-4 at 1; 34-5 at 1.) That is incorrect. While 
FLSA claims such as those pled here may have a 3-year statute of limitations, 

(a), that lookback period does not likely encompass all of 2021. See Mahoney, 

, at *4 (“The notice period under the FLSA generally should be measured 
from the date of the court’s order granting the motion for conditional certification, not from 
the date the complaint was filed.”). Nonetheless, statute-of-limitations challenges to any 
opt-in plaintiffs’ claims “can be addressed subsequent to the completion of discovery 
during the second phase of the collective action certification process.” Anglada v. Linens 
‘N Things, Inc., No. 6-cv-12901 (CM/LMS), 

, at *9 n.5 (S.D.N.Y. Apr. 
26, 2007), R. and R. adopted, (S.D.N.Y. May 22, 2007).                    
means. With those adjustments, a 180-day opt-in period is too long. Accordingly the Long 
Form Notice must be amended to indicate that the signed consent form must be returned 
120 days from the date of mailing notice. Additionally, the Long Form Notice should be 

amended to indicate in the box following “Option 1: RETURN SIGNED FORM” that the 
consent form may be submitted electronically through DocuSign or other reliable means,6 
as well as provide instructions for how to access such means. This amendment shall be 
added to Page two of the proposed Consent Form (Doc. 34-4 at 4) as well.  

    Based on all of the files, records, and proceedings above, IT IS ORDERED that: 
 1.   Plaintiffs’ Motion to Certify Conditional Class (Doc. 30) is GRANTED, and 
      this action is now a conditional collective action under the FLSA, 

(b) for all H-2A workers employed by Boehnke Waste Handling, LLC, at 
      any time from 2021 through 2024;                                   

 2.   Plaintiffs’  Proposed  Notice  and  Consent  Forms  are  ADOPTED  with  the 
      amendments referenced above, for distribution to the putative class members as 
      defined above;                                                     

 3.   Plaintiffs, through counsel, are directed to distribute the approved Notices to the 
      putative class members via U.S. Mail and text message (including, but not 
      limited  to,  utilizing  SMS  and  WhatsApp  messaging  services)  and,  if  class 
      members fail to respond to such notice within 30 days, follow up notice via 
      email;                                                             

 4.   Defendants are directed to post the approved Long Form Notice in all common 
      areas in all housing locations currently occupied by its H-2A workers within 14 
      days of this Order;                                                

 5.   Defendants are directed to produce to Plaintiffs’ counsel, within 14 days of this 
      Order, the names, dates of employment, last-known addresses, email addresses, 

6 At the hearing on this matter, Plaintiffs’ counsel indicated that his firm used DocuSign 
but was unclear whether it could be utilized for consent forms in this matter.  
     and any known telephone or messaging-service numbers  for putative class 
     members; and                                                       

6.   Putative class members’ consent forms must be filed with the Court no later than 
     120 days from the date of this Order.                              

Date: October 3, 2024               s/Douglas L. Micko                   
                                  DOUGLAS L. MICKO                      
                                  United States Magistrate Judge