UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Brooks Barber

v. Case No. 21-cv-742-SE Opinion No.

Bauer Hockey, LLC

O R D E R

Brooks Barber filed a putative collective action on behalf

of himself and similarly situated employees and former employees

of Bauer Hockey, LLC (“Bauer”), alleging violation of the Fair

Labor Standards Act (“FLSA”),

, et seq., and New

Hampshire state law. Barber seeks conditional certification of a

collective action pursuant to

(b) of the FLSA.1

Doc. no. 18. Bauer objects. Because Barber has met his burden to

show that the proposed members of the collective are similarly

1 In the introduction to his motion for conditional certification, Barber states that he seeks certification of a collective of himself “and similarly situated former employees” who worked without pay during the relevant furlough period. Doc. no. 18 at 1. Barber clarified in his reply that he seeks a collective that includes similarly situated current and former Bauer employees who worked without pay during the furlough period. Doc. no. 21 at 1 n.1 As discussed herein, Barber’s proposed definition of the collective is not limited to former employees, and Bauer’s objection interprets Barber’s proposed collective to include both current and former Bauer employees. See doc. no. 20-1 at 20-21. situated enough to receive notice of this action, the court

grants Barber’s motion.2

Standard of Review

The FLSA provides that an employer who violates provisions

of the Act is liable to its employee or employees for their

unpaid minimum wages or overtime compensation, along with other

relief. § 216(b). An employee may bring an action on behalf of

himself “and other employees similarly situated.” Id. Employees

who want to be party plaintiffs may join in a collective action

to enforce their rights under the FLSA. Id.; Tyson Foods, Inc.

v. Bouaphakeo,

(2016); Clark v. Capital Vision

Servs., LLC, No. 22-cv-10236-DJC,

, at *1 (D.

Mass. July 22, 2022). Unlike class actions under Federal Rule of

Civil Procedure 23, FLSA collective actions require similarly

situated employees to opt in rather than opt out of the action.

Tyson Foods,

; Clark,

, at *1.

Courts have addressed the certification process for

collective actions under § 216(b) in two stages. See Campbell v.

City of Los Angeles,

(9th Cir. 2018);

2 Although Barber also brought New Hampshire law claims as a putative class action under Federal Rule of Civil Procedure 23, he explicitly excludes those claims from his motion for conditional certification. See doc. no. 18 at 10-11 n.4. Therefore, the court does not address class certification under Rule 23 in this order.

2 Moreau v. Medicus HealthCare Solutions, LLC, No. 20-cv-1107-JD,

, at *1 (D.N.H. Mar. 10, 2021) (citing cases). The

first stage, preliminary or conditional certification, which is

at issue here, allows “the sending of court-approved written

notice to employees . . . who in turn become parties to a

collective action only by filing written consent with the

court.” Genesis Healthcare Corp. v. Symczyk,

(2013). The court’s consideration of conditional certification

“entails a lenient review of the pleadings, declarations, or

other limited evidence . . . to assess whether the proposed

members of a collective are similar enough to receive notice of

the pending action.” Waters v. Day & Zimmermann NPS, Inc.,

(1st Cir. 2022) (quotation omitted).

“Later, when discovery is complete, an employer may move to

decertify the collective action. This is the ‘second’ stage, and

the court must then make a factual determination as to whether

there are similarly-situated employees who have opted in.” Camp

v. Bimbo Bakeries USA, Inc., No. 18-cv-378-SM,

,

at *2 (D.N.H. Feb. 4, 2019). At this second stage, the court

considers the “factual and employment settings of the individual

plaintiffs, the different defenses to which the plaintiffs may

be subject on an individual basis, and the degree of fairness

and procedural impact of certifying the action as a collective

action.”

“If the court finds then that employees are not

3 ‘similarly situated,’ it will decertify the class and dismiss

the opt-in plaintiffs without prejudice.”

Such factual inquiries are specifically reserved for the

second stage of the certification inquiry.

At the first

stage, “plaintiffs bear the light burden of demonstrating that

there is a reasonable basis for their claim that there are other

similarly situated employees.”

The standard is satisfied by

“making a modest factual showing or asserting substantial

allegations that the putative class members were together the

victims of a single decision, policy, or plan that violated the

law.” Clark,

, at *2 (quotation omitted). Because

the standard is lenient, that determination “typically results

in conditional certification.”

Background

Bauer makes and sells ice hockey equipment. Barber worked

at Bauer as part of the Elite Athlete Services (“EAS”) team from

the summer of 2016 until February 24, 2021. Beginning on April

13, 2020, Bauer put Barber and other employees, including other

members of the EAS team, on furlough without pay because of the

COVID-19 pandemic. Management, supervisory employees, and team

members who were not furloughed continued to operate Bauer.

Bauer continued to provide the furloughed employees with

benefits and cellphone service during that period. Bauer

4 restricted the furloughed employees from using their Bauer

emails and Bauer electronic systems, except their cellphones.

However, Barber alleges that Bauer instructed the furloughed

employees to back up their business contacts on their cellphones

to allow them to continue to work and to communicate with

athletes and teams on Bauer’s behalf. Barber also alleges that

management and supervisory employees contacted him and directed

him to complete work during the furlough period, without

compensation.

In addition, Barber claims that other furloughed employees

told him they were doing work for Bauer while they were

furloughed. For example, one employee purportedly told Barber

that he was fielding a number of work-related inquiries during

the furlough. Another employee said that Bauer’s marketing

director asked him to do a skate fitting for a Bauer athlete

while the employee was furloughed, and that the marketing

director assured him that completing work for Bauer during the

furlough would not present any issues.

Discussion

Barber contends that Bauer violated the FLSA by not

compensating him and other similarly situated furloughed

employees. He moves for conditional certification of a

collective, defined as follows:

5 All individuals who were employed by Bauer Hockey, LLC furloughed beginning on or about April 13, 2020 through on or about June 8, 2020 and did not receive minimum wage for all work completed for Bauer’s benefit, and who elect to join this action pursuant to

(b).

Doc. no. 18 at 2. He also asks that the court permit him to send

notice, as provided in an exhibit attached to his motion (doc.

no. 18-1), to potential plaintiffs, and seeks approval of the

proposed opt-in form for potential plaintiffs (doc. no. 18-2).

Bauer objects to conditional certification of the proposed

collective. In support, it contends that Barber has not shown

that Bauer had a common practice to have furloughed employees

work without compensation. Bauer contends that Barber has not

identified similarly situated employees or those who are willing

to join the action and has not shown that Bauer subjected the

proposed collective to a common decision, plan, or policy.

I. Conditional Certification

Before the court considers whether Barber has met the

necessary burden for conditional certification of the

collective, it must address the parties’ apparent disagreement

over the requested collective’s definition. As mentioned above,

Barber seeks certification of the following collective:

All individuals who were employed by Bauer Hockey, LLC furloughed beginning on or about April 13, 2020 through on or about June 8, 2020 and did not receive minimum wage for all work completed for Bauer’s

6 benefit, and who elect to join this action pursuant to

(b).

In arguing against certification of the collective, Bauer

consistently describes the proposed collective as consisting of

(at most) only eight Bauer employees, all of whom are or were

members of the EAS team. See doc. no. 20-1 at 6 (“By Plaintiff’s

own definition, the proposed FLSA Class consists of only eight

(8) employees . . . .”); id. at 20 (“Barber’s request to send

notice to the eight (8) Putative Class Members should be

denied.).

As Barber notes, Bauer admits in its answer that it

furloughed employees who were not a part of the EAS team. Doc.

no. 21 at 11 n.9 (citing doc. no. 4, ¶ 26). Barber’s definition

of the proposed collective, by its plain language, is not

limited to EAS team members. Instead, it encompasses any Bauer

employee who performed work while furloughed during the relevant

period. Therefore, the court will consider whether Barber has

made the necessary showing as to all Bauer employees who

otherwise fit the proposed collective as defined.3

3 To the extent Bauer’s argument is based on the notion that only EAS team members were furloughed during the relevant period, the veracity of that contention will be revealed through discovery.

7 B. Barber’s Showing

Barber’s declaration in support of his motion for

conditional certification provides an outline of the team

structure at Bauer and details about his work as a member of the

EAS team. Barber states that during the furlough, management and

supervisory employees at Bauer knew that he completed work for

Bauer and sent him text messages on his Bauer cellphone that

directed or caused him to continue to do work. Barber also

asserts that he has received information from other furloughed

EAS team members that they were directed by managers and

supervisors to work during the furlough period and provides

specific examples in support of those allegations.

Bauer contends in response that Barber’s statements in his

declaration are insufficient to support conditional

certification. Instead, Bauer contends that Barber is required

to provide “concrete ‘evidence that the legal claims and factual

characteristics of the class . . . are similar.’” Doc. no. 20-1

at 10 (quoting Trezvant v. Fidelity Employer Servs. Corp.,

(D. Mass. 2006)). It further argues that

conditional certification is inappropriate because the court

would need to engage in a “class member-specific fact finding”

and “conduct a highly individualized assessment of each Putative

Class Member’s furlough experience to determine whether in fact

any Putative Class Members are similarly situated.” Doc. no. 20-

8 1 at 17. For those reasons, Bauer asserts that Barber has not

made the necessary showing for conditional certification.

Bauer overstates the burden that plaintiffs bear when

seeking conditional certification of a collective. Trezvant does

not, as Bauer asserts, require “concrete” evidence of similarity

at this stage. Instead, consistent with other courts in the

First Circuit, Trezvant requires only “some evidence.”

.

Barber has met his burden at this early stage. He alleges

that he and other furloughed Bauer employees worked with Bauer’s

knowledge and that Bauer managers and supervisors directed the

employees to work during the furlough period. He also alleges

that this work was done without pay. He has supported those

allegations in the form of his sworn declaration.4

Moreover, Bauer’s argument that certification is

inappropriate because it requires an excessive and inappropriate

individualized assessment of potential members of the collective

is misplaced. The proposed collective includes Bauer employees

4 Bauer argues that the court should not consider Barber’s declaration because it includes “rank hearsay,” which presumably refers to the information other employees provided to Barber. Doc. no. 20-1 at 12-13. The court need not resolve that issue at the preliminary certification stage because the evidentiary standards applicable to the evidence in support of summary judgment do not apply here and to apply them would defeat the purpose of the two-step certification process. See, e.g., Gorie v. Amazon.com Servs., LLC, No. 20-CV-01387,

, at *3 (N.D. Ohio Sept. 22, 2021).

9 who: 1) were furloughed for roughly a four-month period in 2020

and 2) performed work for Bauer’s benefit without being paid

while on furlough. The court disagrees that conditional

certification of that collective requires the type of detailed,

member-specific analysis that Bauer claims is necessary. See,

e.g., Camp,

, at *4; O’Connor v. Oakhurst Dairy,

No. 2:14-CV-00192-NT,

, at *3 (D. Me. May 22,

2015). That is especially the case here, where Bauer has

provided little to no discovery regarding potential collective

members.

Bauer raises additional arguments against certification,

including that Barber failed to solicit other employees to join

this suit before seeking to certify the collective action. As

the court noted in Camp, whether a plaintiff seeking conditional

certification is required first to identify additional

individuals who are interested in joining the action “is an

issue on which there is substantial debate, even among district

courts in this circuit.”

, at *3 (comparing

cases). The court in Camp stated that, on “balance, the court

agrees that it is premature to require plaintiffs to

demonstrate, before notice is given, that there are other

potential members of the collective who are interested in

participating in this litigation.”

The court agrees that, in

light of a plaintiff’s “light” burden at this stage of the

10 litigation, Barber was not required to recruit collective

members prior to conditional certification.

In addition, Bauer argues that Barber cannot establish that

members of the proposed collective were subject to a common

unlawful policy or practice because there is no dispute that the

FLSA permits employers to furlough employees on a temporary

basis. In other words, Bauer contends that because it lawfully

furloughed employees, it had no unlawful policy or practice.

That argument misses the mark. Barber’s complaint does not

challenge the legality of Bauer’s actions in furloughing certain

employees. Instead, it alleges that Bauer knew or should have

known that furloughed employees were completing work for Bauer’s

benefit during that time without being compensated. Thus,

Bauer’s argument that Barber failed to allege that members of

the proposed collective were subject to a common unlawful policy

or practice because the FLSA permits furloughs is a red herring.

Bauer also contends that there is no collective to be

certified because other furloughed Bauer employees waived their

rights to pursue FLSA claims. Specifically, Bauer asserts that a

month after Barber filed this case, the EAS team employees who

were furloughed signed, at Bauer’s request, a waiver of rights

under the FLSA and a release in favor of Bauer with respect to

11 the claims asserted in this action in return for a lump sum

payment. Doc. no. 20-1 at 19; Doc. no. 20-4, ¶¶ 19 & 20.

However, waiver and release of rights under the FLSA by

employees has long been disfavored. Barrentine v. Arkansas-Best

Freight Sys., Inc.,

(1981). Thus, the court

declines, at this early stage, to conclude that other furloughed

Bauer employees are precluded from joining a § 216(b) collective

action because of the waivers and releases they signed.5

At this preliminary stage, Barber has sufficiently made the

required showing that there are other similarly situated Bauer

employees to support conditional certification. Specifically, he

has alleged and provided some evidence of a common plan or

policy by Bauer to permit or require furloughed employees,

including Barber, to work without pay with managers’ or

supervisors’ knowledge or direction. Bauer’s arguments to the

contrary, which largely focus on factual issues that it contends

should preclude certification, are better addressed in the

second stage of the litigation after discovery has taken place

and if and when Bauer moves to decertify the collective.

5 Further, Barber states only that other EAS team members waived their rights under the FLSA. As discussed above, the proposed collective is not limited to EAS team members and, therefore, Bauer’s argument is inapposite in any event.

12 II. Notice

With the issue of conditional certification decided, there

remain the issues of the scope of the collective and the content

of the notice.

A. Scope of the Collective

As discussed above, Barber asks the court to approve notice

to the collective defined as:

All individuals who were employed by Bauer Hockey, LLC furloughed beginning on or about April 13, 2020 through on or about June 8, 2020 and did not receive minimum wage for all work completed for Bauer’s benefit, and who elect to join this action pursuant to

(b).

In addition to arguing that the collective is or should be

limited to EAS team members, an argument that the court has

addressed above, Bauer argues that the collective should be

confined to employees who were or are located in the United

States. In support, it contends that the court lacks

jurisdiction over Bauer’s Canadian employees.

Bauer’s jurisdictional argument is “seemingly non-

frivolous.” Camp,

, at *4 n.2. But such a

jurisdictional “issue requires additional briefing from the

parties and can be addressed by the court once a proper notice

has been issued and all potential members of the collective have

been identified.”

Therefore, the collective defined by

13 Barber, pertaining to all Bauer employees who worked during the

furlough period without pay, will receive notice.

In order to send notice to potential collective plaintiffs,

Barber asks the court to order Bauer to identify all potential

members of the defined collective within 15 days of the date of

this order, with their names, mailing addresses, email

addresses, telephone numbers, work locations, and dates of

employment. Barber proposes to send notice and the opt-in form

by mail, email, and text message; to give the potential

collective members 90 days from receipt of the notice to return

the opt-in form; and to send a reminder by the same means as

notice after 45 days.

Bauer objects to the notice Barber proposes and asks the

court to order counsel to confer regarding a revised joint

notice. As examples of the problems with the proposed notice,

Bauer asserts that the means of notice should not include text

messages absent a compelling reason, that a third-party

administrator should be appointed to avoid giving Barber’s

counsel “unfettered” access to Bauer’s employees’ contact

information, that the notice period is too long and should not

include a reminder, and that the notice improperly fails to

notify prospective collective members that they could be liable

for the costs of the case. Barber filed a reply but did not

respond to Bauer’s objections to the proposed notice.

14 Some of the issues Bauer raises regarding Barber’s proposed

notice have been the subject of recent decisions regarding

conditional certification under § 216(b), with mixed results.

For example, certain cases support notice by text message

because of the mobility of today’s society. See, e.g., Njoroge

v. Primacare Partners, LLC, No. 22-0425-BAH,

, at

*7 (D. Md. Sept. 26, 2022). Others, however, require a showing

that regular mail and email have not been effective before

allowing notice by text message. See, e.g., Cates v. Alliance

Coal, LLC, No. 21-CV-377-SMY,

, at *3 (S.D. Ill.

Sept. 27, 2022) Further, although a 90-day timeframe for

potential collective members to respond is common, see, e.g.,

Washington v. Freedom of Expression LLC, No. CV-21-01318-PHX-

MTL,

, at *4 (D. Ariz. Sep. 30, 2022), some

courts have ordered less time, see, e.g., Cates,

, at *3 (allowing 60 days for potential collective

members to respond to notice despite the plaintiff’s request for

90 days). Similarly, courts have allowed reminders in some cases

but not in others. Wells v. Cmty. Health Sys., Inc., No. 3:21-

CV-00865,

, at *6 (M.D. Tenn. Sept. 22, 2022)

(noting that “district courts . . . across the country are split

as to whether reminder notices to potential class members are

proper in FLSA actions” (quotation and alteration omitted)).

15 Other issues that Bauer raises with the proposed notice

appear to have merit or require the parties to confer. For

example, in FLSA actions, courts generally have required, as

Bauer requests, that notice to opt-in plaintiffs include

information that they could share liability for costs if the

defendant prevails in the case. See, e.g., Spencer v. DMD Mgt.,

Inc., No. 1:21CV1698,

, at *4 (N.D. Ohio July 14,

2022). In addition, courts have allowed a third-party

administrator when the parties agree that procedure is

necessary. Chapman v. Saber Healthcare Grp., LLC, No. 2:20CV106,

, at *12 (E.D. Va. Aug. 25, 2022); Njoroge,

, at *7; Davine v. Golub Corp., No. 14-30136-MGM,

, at *1 (D. Mass. June 11, 2015). Thus, Bauer is free

to seek Barber’s consent to have a third-party administrator

gather the contact information and disseminate the notices in

this case. However, because a protective order would likely

accommodate Bauer’s concerns about confidentiality of contact

information, Bauer has not yet shown that a third-party

administrator is required.

In light of the issues Bauer raises, the parties shall

confer about the notice procedure and attempt to reach a joint

proposal. If the parties are unable to reach a joint proposal,

despite their best good faith efforts to do so, they shall file

separate notice proposals, with citations to authority

16 supporting the provisions they request. The court will then

issue an order for notice.

Conclusion

For the foregoing reasons, the plaintiff’s motion for

conditional certification of a collective action pursuant to

§ 216(b) (document no. 18) is granted, with the exception of the

requested notice procedure.

The following collective is conditionally certified:

All individuals who were employed by Bauer Hockey, LLC furloughed beginning on or about April 13, 2020 through on or about June 8, 2020 and did not receive minimum wage for all work completed for Bauer’s benefit, and who elect to join this action pursuant to

(b).

The parties shall confer about the notice to be provided to

the conditionally certified collective. On or before November 8,

2022, counsel shall file a joint proposed notice to the

collective, or if necessary, separate proposed notices, as is

provided above.

SO ORDERED.

______________________________ Samantha D. Elliott United States District Judge

October 18, 2022

cc: Counsel of record

17