UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

James McCarthy

v. Civil No. 1:21-cv-668-JL Opinion No.

Medicus Healthcare Solutions, LLC

MEMORANDUM ORDER

At issue in this Fair Labor Standards Act collective action suit is the correct

standard under which to evaluate a motion for conditional certification of an employee

collective. Plaintiff James McCarthy moves to conditionally certify such a collective of

employees of Defendant Medicus Healthcare Solutions, LLC. He alleges that Medicus

had a common pay practice or plan that resulted in him and similarly situated physician

recruiters not receiving overtime wages for all earned overtime hours, in violation of the

FLSA. This court has subject-matter jurisdiction under

(federal

question) and

(b).

Medicus objects, arguing that the late procedural posture of McCarthy’s motion

requires the court to apply a stricter conditional certification standard, and under that

standard, McCarthy cannot establish that other similarly situated employees were subject

to the same unlawful pay policy. Medicus further highlights the fact that no other

putative plaintiffs have opted into this suit as compelling evidence that certification is

inappropriate. After consideration of the parties’ submissions, the court grants the

motion. Notwithstanding the timing of McCarthy’s motion, the court applies the more

lenient standard and finds that he has made a modest factual showing that he and other recruiters were the victims of at least one common policy or plan that violated the FLSA.

McCarthy has thus demonstrated that other similarly situated employees exist who should

receive notice of this lawsuit.

Applicable legal standard

Under the FLSA, an employee may bring an action on behalf of himself “and

other employees similarly situated.” § 216(b). This type of suit – referred to as a

“collective action” – is different than a class action in that certifying a collective does not

depend on the strictures of Federal Rule of Civil Procedure 23. Moreover, while a class

under Rule 23 automatically includes all unnamed members who fall within the class

definition (and thus requires those who do not wish to participate to opt out), “the FLSA

provides that those individuals who are ‘similarly situated’ to the plaintiff must

affirmatively opt into a collective action if they wish to participate.” Camp v. Bimbo

Bakeries USA, Inc., No. 18-CV-378-SM,

, at *1 (D.N.H. Feb. 4, 2019)

(McAuliffe, J.).

The First Circuit Court of Appeals has not adopted a procedure for certifying an

FLSA collective action. Courts within the circuit, however, generally address

certification in two stages. See, e.g., Camp,

, at *2; Prescott v.

Prudential Ins. Co.,

(D. Me. 2010) (Hornby, J.); Clark v. Cap. Vision

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

, at *1 (D. Mass. July 22, 2022)

(Casper, J.); Macklin v. Biscayne Holding Corp., No. 19-561WES,

, at

*7 (D.R.I. Nov. 2, 2020) (Sullivan, M.J.). At the first stage, “plaintiffs bear the light

2 burden of demonstrating that there is a reasonable basis for their claim that there are other

similarly situated employees.” Barber v. Bauer Hockey, LLC, No. 21-cv-742-SE,

, at *2 (D.N.H. Oct. 18, 2022) (Elliot, J.) (quoting Camp,

, at *2). “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.’”

(quoting Clark,

, at *2). If the plaintiff makes this showing, the court “conditionally” certifies a

collective. The “sole consequence of conditional certification [under § 216] is 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).

At the second stage, typically after the defendant moves to decertify the collective,

the court makes “a factual determination as to whether there are similarly situated

employees who have opted in.” Barber,

, at *2 (quoting Camp,

, at *2). In making this factual determination, 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 ‘similarly situated,’ it will decertify the [collective] and dismiss the

opt-in plaintiffs without prejudice.”

3 Background

The court recites the relevant factual background from McCarthy’s complaint,1

and other evidence submitted with the parties’ briefing.2 Medicus is a New Hampshire

limited liability company based in Windham, New Hampshire.3 It provides nationwide

physician recruitment and placement services, medical staffing solutions, “locum tenens”

staffing services, and other consulting services to healthcare organizations and providers.4

To carry out some of these services, Medicus employs physician recruiters.5 McCarthy

was a physician recruiter for Medicus from September 2017 to November 2018.6

Medicus determined every element of a physician recruiter’s job, including the work

schedule, procedures to use, scripts for recruiting calls, templates for emails, and other

1 First Amended Complaint (doc. no. 17). 2 The parties cross move to strike certain supporting documents relating to their conditional certification briefing. McCarthy moves to “exclude” Medicus’ opposition brief entirely because it allegedly relies on “manufactured,” false evidence. See doc. no. 50. Medicus moves to exclude the testimony and declaration of McCarthy’s attorney, Andrew W. Dunlap, which McCarthy submitted with his reply memorandum. See doc. no. 48. The court denies both motions without prejudice. Neither Medicus’ opposition nor Attorney Dunlap’s declaration will be stricken. As shown below, however, the court does not rely on Attorney Dunlap’s declaration or the evidence from Francis O’Hearn’s declaration in resolving the conditional certification motion. 3 FAC at ¶ 17. Medicus had other offices in Denver, Colorado and Houston, Texas that are now closed. See Medicus Obj. (doc. no. 42-1) at 12, n.8. 4 FAC at ¶ 23. 5 Id. at ¶ 24. 6 Id. at ¶¶ 2, 10, at 25.

4 associated work duties.7 Recruiters like McCarthy also performed their work according

to “well-established procedures,” “established guidelines[,] and predetermined

parameters” set by Medicus.8

Medicus classified McCarthy as a “non-exempt”9 employee under the FLSA and

paid him a salary plus commissions.10 By classifying McCarthy and other recruiters as

non-exempt, according to McCarthy, Medicus knew that under the FLSA, it needed to

pay such non-exempt employees overtime wages.11 McCarthy alleges that Medicus

required him to regularly work over 40 hours a week and knew that his work as a

recruiter required him to work over 40 hours in a workweek.12 It provided him overtime

pay for “approved” hours or work, but McCarthy worked additional overtime hours for

which Medicus did not provide overtime pay.13 Medicus also knew that aside from the

approved overtime pay, McCarthy and other recruiters were working over 40 hours a

7 Id. at ¶ 31. 8 Id. at ¶¶ 33-35. 9 The FLSA and its implementing regulations provide that certain categories of employees are “exempt” from the statute’s overtime pay requirements. See, e.g.,

;

, et seq. McCarthy does not contend that Medicus misclassified him or any other putative plaintiff as a non-exempt employee. 10 FAC at ¶¶ 3, 26. 11 Id. at ¶¶ 39-40, 49. 12 Id. at ¶¶ 11-12, 81. McCarthy further alleges that the Medicus’ “recruiters were required to regularly work 10 or more hours in a day and five days a week.” Id. at ¶ 42. 13 Id. at ¶¶ 11, 44, 50-52.

5 week and not receiving overtime pay for that work.14 Medicus required McCarthy to

document approved overtime work and pay, and kept accurate records of this work and

pay.15 The complaint alleges, however, that Medicus did not document the “off the

clock” hours McCarthy and other recruiters worked.16

McCarthy signed a FLSA “Employment Services Consent” form on August 9,

202117 and filed suit in this court on August 12, 2021.18 Prior to answering the complaint,

Medicus twice moved to dismiss the original complaint on statute of limitations

grounds.19 The court denied those motions, Medicus answered the complaint, and the

parties proceeded to discovery. During discovery, the parties unsuccessfully attempted to

resolve the dispute at mediation. McCarthy then filed his conditional certification

motion.

Analysis

A. The applicable standard

The parties dispute the proper standard to apply. Medicus argues that because

McCarthy filed the motion “near the end of the case” and the parties have engaged in

14 Id. at ¶¶ 53-54. 15 Id. at ¶¶ 62-64. 16 Id. at ¶¶ 56, 63. 17 See doc. no. 1-1. 18 See doc. no. 1. 19 See doc. no. 15.

6 “extensive discovery,” the court should apply the heightened standard applicable to the

later, decertification stage discussed above.20 McCarthy replies that he should not be

prejudiced for pausing the litigation (and delaying the filing of this motion) to attempt to

resolve the case at a pre-certification mediation, and the more lenient first-stage standard

should apply. The court agrees with McCarthy, for several reasons.

The conditional certification stage “usually occurs early in a case, before

substantial discovery, based only on the pleadings and any affidavits which have been

submitted.” Camp,

, at *2 (quoting Prescott,

-

65); see also Waters v. Day & Zimmermann NPS, Inc.,

(1st Cir. 2022)

(The conditional certification analysis “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.” (quotation

omitted)). By contrast, the second stage typically occurs after “discovery is complete.”

Barber,

, at *2. At this point, the status of discovery falls somewhere

in between these two stages. While discovery related to McCarthy individually is well

underway and likely close to completion, the parties have engaged in limited discovery

about the putative collective. To date, Medicus has objected to answering interrogatories

or document requests about other putative plaintiffs.

Though McCarthy filed his motion at an atypical procedural stage, courts have

applied the lenient standard under similar procedural circumstances, including after the

20 Doc. no. 42-1 at 1.

7 parties engaged in substantial discovery. For example, in Drake v. Tufts Associated

Health Maintenance Organization, Inc., the plaintiff initially sought conditional

certification of a broad collective based on the pleadings alone. No. CV 19-11876-FDS,

, at *2 (D. Mass. Feb. 12, 2021). The court denied the motion without

prejudice and allowed the parties to conduct discovery on “the shape of the collective, the

basics of job titles’ duties, [and the] commonality of the policy.”

Following

discovery, the plaintiff renewed her conditional certification motion, narrowed the

proposed collective definition, and supported her motion with “declarations, deposition

testimony, and documents that indicate[d] that [the collective members] performed

similar job duties.” Id. at *4. The court applied the lenient standard and granted

conditional certification. Id. at *3-*4; see also Prescott,

(applying

lenient first stage standard under similar procedural circumstances); Wise v. Patriot

Resorts Corp., No. 04-30091-MAP,

, at *2 (D. Mass. Feb. 15, 2006)

(declining to skip the notice stage even though the “bulk of discovery [was] complete”

because the plaintiffs were “manifestly entitled to take the first step of the two-step

process towards obtaining approval to proceed with their collective action”).21 This court

21 Medicus cites two cases from the District of Massachusetts that purportedly applied a heightened or intermediate standard to a conditional certification motion. See Medicus’ Surreply (doc. no. 47) at 3. Those cases, however, are factually and procedurally distinguishable from this one. See Maldonado v. Cultural Care, Inc., No. CV 20-10326-RGS,

, at *3 (D. Mass. July 28, 2021) (applying an “approach closer to the second stage inquiry” where the parties had “conducted six months of class discovery,” class discovery had closed at the time the plaintiffs filed the motion, and the case involved putative class action claims under Massachusetts and California law, requiring a more rigorous showing under Rule 23); Botero v. Commonwealth Limousine Serv. Inc., No. CIV.A. 12-10428-NMG,

, at *3 (D. Mass. Mar. 25, 2014) (primarily relying on a 1998 decision from the District of Kansas in support of its application of an “intermediate” standard); see also Yayo v. Museum of Fine Arts,

8 therefore does not apply a heightened standard based on the timing of McCarthy’s filing

or the status of discovery, as Medicus requests.

McCarthy also provides a reasonable explanation for the alleged delay in filing.

The parties agreed to pause the litigation in order to mediate the case in November 2022.

The parties also agreed to toll the statute of limitations for putative collective members.22

When settlement efforts failed, McCarthy promptly filed his conditional certification

motion in early December 2022. Medicus then asked for and received a 30-day extension

of its response deadline to late January 2023.23 The motion was not fully briefed until

February 7, and even after that, the parties continued to litigate subsidiary, related issues24

and conduct discovery. The court took the existing summary judgment deadline off the

case calendar at the mid-litigation discovery status conference and plans to impose a new

deadline following the issuance of this order.

Lastly, “the prejudice to [McCarthy] of skipping the notice stage could be

significant, while prejudice to [Medicus] is minimal since it is able to move for

decertification” after the close of discovery. Prescott,

. Because

No. CIV.A. 13-11318-RGS,

, at *4 (D. Mass. June 26, 2014) (proceeding directly to the second stage where “the factual record [was] complete,” but nonetheless granting conditional certification). This authority does not persuade the court to buck the majority of decisional law from this circuit applying the more lenient standard to conditional certification motions. 22 See Tolling Agreement (doc. no. 37-17). The court’s understanding is that neither party has terminated the tolling agreement to date. 23 See doc. no. 38. 24 See doc. nos. 48 and 50.

9 conditional certification is ultimately a “case management tool,” the court exercises its

broad discretion to manage its cases and applies the lenient first-stage standard to

McCarthy’s motion. Waters,

.

B. The merits

McCarthy seeks to conditionally certify a collective of “[a]ll non-exempt, salaried

recruiters who worked for Medicus from September 26, 2019 to present.”25 He argues

that this collective was subject to a single policy that resulted in “at least three” FLSA

violations by Medicus: (1) failure to record all hours worked by non-exempt recruiters;

(2) failure to pay those recruiters for all hours worked over 40 hours in a week; and (3) in

the instances where the company paid overtime, failure to pay at one-and-a-half times the

recruiters’ regular rates. Under the common policy, Medicus only paid overtime to

recruiters for pre-approved hours or work. But, if a recruiter worked over 40 hours in a

week and did not receive the company’s prior approval, Medicus would not pay them

overtime pay for this work. McCarthy further alleges that Medicus had a common policy

of not including earned commissions in the recruiter’s “regular rate” for purposes of

calculating overtime pay.

Medicus counters that McCarthy has failed to make even a modest factual

showing that other recruiters were subject to a policy that resulted in them not receiving

earned overtime pay; in other words, Medicus contends that it paid overtime wages for all

eligible hours. Medicus further argues that the fact that no other putative collective

25 Doc. no. 37-1 at 1.

10 members have opted into this suit suggests that there are no similarly situated recruiters.

Lastly, Medicus asserts that McCarthy cannot support his conditional certification motion

with allegedly new, unpled theories of FLSA liability or unlawful pay practices. As

detailed below, the court finds that McCarthy has made the necessary modest showing to

warrant conditional certification and notice to potential collective members.

1. McCarthy’s showing

McCarthy alleges that the demands of the recruiter job often require recruiters

(including himself) to work over 40 hours per week. Medicus understands this and

knows that recruiters commonly work more than 40 hours each week.26 Yet Medicus

does not pay overtime wages for all the recruiters’ overtime-eligible hours. Instead,

Medicus has a policy of paying overtime to recruiters only for pre-approved overtime

hours.27 For pre-approved hours, the company pays overtime and documents those

payments.28 The regular rate used to calculate overtime pay does not include

commissions the recruiters received.29 For overtime hours or work that are not pre-

approved, Medicus pays the recruiters no overtime.30

26 FAC at ¶¶ 11-12, 42-44, 49, 54, 56, 81, 84; see also Medicus 2018 Employee Handbook (doc. no. 37-3) at 23. 27 FAC at ¶¶ 4-5, 11, 48, 50-52; see also doc. no. 35 at ¶¶ 3, 71; Medicus Overtime Policy (eff. Nov. 1, 2016) (doc. no. 37-4). 28 FAC at ¶¶ 45, 63. 29 Id. at ¶ 69, 71, 77, 82. 30 Id. at ¶¶ 47, 53, 58, 61.

11 McCarthy substantiates these allegations regarding a common plan or policy with

a variety of evidence. For example, he relies on Medicus’ pleadings and policy

documents, where Medicus admits that it classified certain recruiters as non-exempt and

paid them a salary plus commissions. Medicus also admits that those recruiters

performed similar job functions and were subject to the same overtime pre-approval pay

policy.31 See Clark,

, at *4 (noting that “courts routinely grant

certification where the proposed class members’ job titles or duties are not exactly the

same, as long as they are similar” (quoting Drake,

, at *5 (D. Mass.

Feb. 12, 2021))).

In addition, McCarthy reinforces other key allegations with his own deposition

testimony, a declaration and deposition testimony from a former recruiter, Anthony

Gillis, Medicus’ overtime pay policy and employee handbook, and Medicus’ sworn

answers to interrogatories and requests for admissions.32 He also submits evidence that

31 Amended Answer (doc. no. 35) at ¶¶ 67, 71; see also OT Policy (doc. no. 37-4) (“If a Salary Non-Exempt employee has Overtime hours to report,” they must “1.) Get overtime pre-approved by your manager[.] a. If an employee works overtime and it is not pre-approved, the employee is subject to disciplinary action[.]”); Handbook (doc. no. 37-3) at 23-24 (“All overtime work performed by an employee must be pre-approved in advance by his/her manager. This work rule includes any form of work related electronic communication after the normal workday. Violation of this rule may result in discipline up to and including termination of employment. It is the employee’s responsibility to track hours and submit overtime hours for payment. . . . Medicus is not responsible to pay employee for any overtime hours worked that employee did not submit for payment.” (emphasis added)). 32 See, e.g., McCarthy Deposition (doc. no. 37-2) at 25:18-20, 30:8-21, 62:23-65:11, 127:10-17 (re: regularly working over 40 hours per week and not being paid for all of it, and Medicus’ knowledge and expectations), 58, 69, 82-83 (re: policy of overtime payments only for pre- approved hours), 80:7-11 (re: regular rate calculation); Gillis Declaration (doc. no. 37-13) at ¶ 5 (re: regular rate calculation), ¶¶ 5-9, 10 (re: OT pre-approval policy, hours worked, and Medicus’ knowledge); Gillis Deposition (doc. no. 44-2) at 68:10-13, 69:3-11 (re: non-payment of overtime

12 the recruiters’ managers discouraged recruiters from seeking overtime pay approval, 33

and that Medicus does not track or record the recruiters’ hours if: (i) they do not work

over 40 hours in a week; and (ii) they do not complete and submit “overtime justification

timecards” for their overtime hours.34

This evidence and Medicus’ admissions support McCarthy’s general theory of

collective-wide FLSA liability: that the written overtime pre-approval policy, combined

with the company’s culture of pushing recruiters to maximize productivity but

discouraging them from seeking pre-approval of overtime pay, led to McCarthy and other

similarly situated recruiters not receiving all overtime wages to which they were entitled.

A pay policy that results in not paying all earned overtime wages to non-exempt workers,

prior to June 2018), 73:1-13, 138-39 (re: expectations of working more than 40 hours per week and recruiters regularly working more than 40 hours per week), 127:8-17, 166:2-5 (re: regular rate calculation); Handbook (doc. no. 37-3) at 23 (“Because of the nature of our work, employees may be asked to work overtime on weekends or holidays or additional hours during the regular workday and are expected to comply with such requests.”); OT Policy (doc. no. 37-4) (“Medicus is not responsible to pay employee for any overtime hours worked that employee did not submit for payment.”). These are non-exhaustive examples of McCarthy’s supporting evidence of Medicus’ common policy or plan as to the recruiters. McCarthy also submitted deposition testimony from Medicus managerial-level or human resources employees regarding the similarities in the recruiters’ work, pay practices, and pay structure. See Shackford Depo. (doc. no. 37-15) at 35:11-36:1; Croke Depo. (doc. no. 37-16) at 44-46. 33 See, e.g., McCarthy Depo. (doc. no. 37-2) at 30, 57, 62-65, 69-70; Gillis Decl. (doc. no. 37-13) at ¶ 12; Gillis Depo. (doc. no. 44-2) at 54:14-17, 136-137. 34 See doc. no. 37-4 at 1 (“A timesheet is NOT required if there are no Overtime hours to report” and “Employee is responsible for tracking hours and submitting any overtime for approval in a timely manner”); Medicus’ Responses to First Set of Requests for Admission (doc. no. 37-14) at nos. 4 (“Medicus admits that it does not have documents reflecting the hours Mr. McCarthy worked in weeks in which he worked less than forty hours in a week”) and 5 (similar answer, but for McCarthy’s “stop and start times”); see also Gills Depo. (doc. no. 44-2) at 72:12-18, 166:6- 10; Gills Decl. (doc. no. 37-13) at ¶ 10.

13 the theory goes, violates the FLSA. See

(a)(1); see also

(“Work not requested but suffered or permitted is work time”; an employee’s

reason for doing the work is “immaterial.”).

McCarthy has thus made “a modest factual showing” and “assert[ed] substantial

allegations that the putative class members were together the victims of a single decision,

policy, or plan that violated the law.’” Barber,

, at *2; see also

Norceide v. Cambridge Health All.,

(D. Mass. 2011) (plaintiffs

made “a modest factual showing that the putative class members were all subject to

CHA’s practice of discouraging its workers from recording time worked before and after

their shifts and during their meal breaks, thereby paying its employees based on their

theoretical schedules rather than actual time worked”). The court finds that McCarthy

has satisfied his “fairly lenient” burden of establishing a reasonable basis for his claim

that there are other similarly situated employees in the putative collective. Prescott,

.

2. Medicus’ responses

Medicus’ main objection to McCarthy’s conditional certification request is that the

evidence shows that McCarthy and Gillis were paid overtime wages for all work or hours

they submitted to the company. Medicus also argues that alleged inconsistencies in

McCarthy’s evidence preclude conditional certification. And it contends that McCarthy

admitted certain facts in his deposition that give rise to individualized defenses, further

weighing against certification. Lastly, Medicus says the fact that no other putative

14 plaintiffs have opted into this suit is “strong evidence there are no similarly situated

employees.”35 The court addresses each of Medicus’ arguments in turn.

With its objection, Medicus submitted declarations from several Medicus

employees purporting to refute McCarthy’s allegations of unlawful pay practices.36 It

asserts that this rebuttal evidence shows that the company paid recruiters for all properly

documented overtime hours worked, whether or not pre-approval was sought and

granted. Faced with this evidence, Medicus contends that McCarthy “changed course” at

his deposition and alleged for the first time that he falsified his time records at the

direction of his supervisors. This change, says Medicus, undercuts McCarthy’s

credibility. Medicus also points to alleged inconsistencies between McCarthy’s

testimony and Gillis’ testimony about the nuances of the overtime pre-approval policy as

proof that a company-wide policy for recruiters did not exist.37 For example, it says that

Gillis and McCarthy gave different answers as to when the overtime pre-approval policy

began, whether pre-approval was required week to week, and whether it applied to

“special projects” or any hours worked.

35 Doc. no. 42-1 at 2, 14. 36 See, e.g., doc. nos. 42-2-42-5, 42-8, and 42-10. 37 Medicus also argues that Gillis’ reliance on hearsay statements from unnamed co-workers undercuts the credibility of his testimony. Because the “evidentiary standards applicable to the evidence in support of summary judgment do not apply” at the first stage, however, the court does not discount Gillis’ declaration on hearsay grounds for purposes of deciding this motion. Barber,

, at *4. The court will apply those heightened standards to any motion for summary judgment or motion to de-certify the collective.

15 Medicus’ arguments – some or all of which may have merit when considered at

the appropriate time – are inapposite at the conditional certification/notice stage. For

purposes of this motion, “the court does not resolve factual disputes, decide substantive

issues going to the ultimate merits, or make credibility determinations.” Gardner v.

Fallon Health & Life Ins. Co., Inc., No. CV 4:19-40148-TSH,

, at *3

(D. Mass. Sept. 29, 2021) (quoting Montoya v. CRST Expedited, Inc.,

(D. Mass. 2018)); see also Gorie v. Amazon.com Servs., LLC, No. 1:20-CV-

01387,

, at *4 (N.D. Ohio Sept. 22, 2021) (“[T]he Court must refrain

from weighing Defendants’ competing evidence at this juncture where doing so would

require credibility and factual determinations improper at the conditional certification

stage.” (quotations omitted)).38

Courts routinely decline to resolve factual or merits disputes or weigh witness

credibility at the conditional certification stage. For example, in Romero v. Clean

Harbors Surface Rentals USA, Inc., the defendant – like Medicus here – cited its pay

records as evidence that the named plaintiff “did, in fact, receive overtime pay.”

(D. Mass.), opinion clarified,

(D. Mass. 2019).

The court deemed this a “pure factual dispute, which [would] either be reconciled in the

38 Had the court weighed the parties’ competing evidence or resolved credibility or fact disputes, the Medicus’ employee declarations would have factored little into the analysis, as such “happy camper” declarations – if considered at all – are “generally entitled to little or no weight at [the conditional certification] stage.” Spencer v. Macado’s, Inc., No. 6:18-cv-00005,

, at *4 (W.D. Va. Sept. 27, 2019); see also Creely v. HCR ManorCare, Inc.,

(N.D. Ohio 2011) (“[‘Happy camper’] affidavits are of little use at this juncture . . . [T]he Court’s function at this stage of conditional certification is not to perform a detailed review of the individualized facts from employees hand-picked by [Defendant].”).

16 course of discovery or decided by the ultimate fact finder” and could not be resolved “at

the conditional certification stage.” Id.; see also Prescott,

(declining to resolve disputes over hours worked, overtime payment, employer pressure,

and other merits issues).39

Moreover, contrary to Medicus’ argument, an employer’s policy may be

considered “common” despite subtle differences in the alleged policy itself or how the

employer implements it. Medicus admits that the overtime pre-approval policy applied to

all recruiters, and the written policy documents reflect that. McCarthy’s testimony about

the general sentiment or cultural understanding of how that written policy was

implemented also suffices at the conditional certification stage. Indeed, in some

instances, a formal policy is not required to warrant conditional certification. See

Norceide,

(“While not a formal policy, CHA’s practice was

uniform, effectively depriving workers of compensation for time worked beyond their

shifts. As mentioned above, the FLSA is a strict-liability statute, meaning than an

employer is obliged to ensure that an employee who could have but did not record all

time on the job is properly compensated with a minimum wage and overtime for all time

39 Prescott is analogous to this case in several ways. In particular, the alleged FLSA violations and unlawful company policy are almost identical, and the plaintiff moved for conditional certification at a similar advanced stage of discovery. Judge Hornby ultimately concluded that the plaintiff had “made a sufficient showing that disability claims handlers in Maine and New Jersey understood that Prudential, with some exceptions, would not approve payment of overtime and in fact did not pay employees for overtime work they performed” and “that by instituting company-wide metrics for performance, Prudential knowingly created a situation where disability claims handlers would likely work extra hours and in fact did[.]” Prescott,

.

17 actually worked. Employers and employees do not have equal bargaining power.

Employees, often fearing that they may lose their jobs if they do not oblige, regularly

succumb to employer pressure to perform uncompensated labor.” (citing

, 207, and 255(a))).40

Medicus also argues that because no other potential collective members have

opted into this case, the court should infer that no similarly situated recruiters exist.

While the lack of other opt-ins may be surprising, neither the FLSA nor the First Circuit

Court of Appeals imposes a duty on named plaintiffs to solicit collective members prior

to conditional certification. See Litz v. Saint Consulting Grp., Inc., No. CIV.A. 11-

10693-GAO,

, at *2 (D. Mass. Feb. 17, 2012) (“Although some courts

have imposed this additional requirement, it has not been adopted by the First Circuit . . .

. To require at this stage a showing that potential class members, who have not been

formally notified, want to join the class is inconsistent with the idea that the preliminary

certification is only ‘conditional.’”). The court thus agrees with Judges Elliot and

McAuliffe 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.” Barber,

, at *4 (quoting Camp,

,

at *4); see also Trezvant v. Fid. Emp. Servs. Corp.,

(D. Mass.

40 As discussed above, McCarthy’s deposition testimony generally supports the allegations in the complaint, which is sufficient for purposes of deciding this motion. McCarthy’s new allegations about fabricating time records may, however, factor into merits or damages determinations, create credibility issues, or give rise to new defenses for Medicus.

18 2006) (“[S]ubmission of additional affidavits beyond those of the named plaintiffs is not

necessary to make a ‘similarly situated’ showing[.]”). And while McCarthy appears to

know the names of some potential opt-ins, Medicus has refused to provide any

information about potential collective members that could facilitate pre-certification

solicitation. If Medicus’ theory about the lack of interest in joining this suit is correct,

“there exists a second stage where [it] [can] move to decertify the class if in fact no other

plaintiffs opt in.” Rossello v. Avon Prod., Inc., No. CIV. 14-1815 JAG,

, at *1 (D.P.R. Sept. 28, 2015). McCarthy’s motion for conditional certification

is granted.

3. The collective definition

The parties also disagree about the composition of the collective. In his motion,

McCarthy seeks to conditionally certify a collective of “[a]ll non-exempt, salaried

recruiters who worked for Medicus from September 26, 2019 to present.”41 McCarthy’s

collective definition is noticeably different than the definition he proposed in his First

Amended Complaint: “All non-exempt salaried recruiters employed by Medicus during

the past 3 years who were not paid overtime for all hours worked over 40 in a

workweek.”42 Presumably, he seeks to certify a new, broader collective in order to

include recruiters whose “regular rate” for overtime pay purposes did not include

41 Doc. no. 37-1 at 1. 42 FAC at ¶ 14. It is also different than the collective identified in McCarthy’s proposed notice and consent form. See doc. no. 37-12.

19 commissions and for whom Medicus did not properly record all hours worked. Medicus

argues that because McCarthy did not plead these alleged FLSA violations in the

operative complaint and has not sought to amend that complaint, recruiters who were

subject to these violations cannot be included in the proposed collective. Medicus also

contends that McCarthy has not made even a modest showing for a nationwide collective

of recruiters that would include employees who worked at Medicus’ now-closed Denver

and Houston offices.

Prior to issuing this order, the court held a hearing to question the parties about the

composition of the collective and attempt to reconcile the seemingly different proposed

collective definitions offered by McCarthy. At the hearing, the parties agreed that the

question of whether Medicus properly recorded the recruiters’ hours worked, while

unpled in the operative complaint, is a merits question that does not affect the definition

of the collective. The parties further agreed that the definition proposed in McCarthy’s

motion, with some modifications, best represented the potential collective.

The court therefore conditionally certifies a collective of: All non-exempt,

salaried recruiters who worked for Medicus from September 26, 2019 to the date

the court-approved notice is sent out, excluding those recruiters who worked out of

Medicus’ Texas or Colorado offices during that time.

The court notes that this definition potentially includes recruiters who were not

paid the correct regular rate for the overtime pay they did receive. While Medicus argues

that McCarthy did not plead this alleged FLSA violation in the operative complaint, the

court finds that the complaint (when construed in McCarthy’s favor) plausibly includes a

20 claim encompassing an improper rate calculation. See, e.g., FAC (doc. no. 17) at ¶¶ 69,

71, 77, 82. Moreover, the court does not view McCarthy’s since-amended interrogatory

answer that Medicus paid him overtime in an “accurate amount according to the law” as a

waiver of his or members of the collectives’ right to assert an FLSA claim relating to the

regular rate calculation. See

(“Commissions . . . are payments for

hours worked and must be included in the regular rate . . . regardless of whether the

commission is the sole source of the employee’s compensation or is paid in addition to a

guaranteed salary or hourly rate.”). The court also does not include the small number of

recruiters that worked in the Houston or Denver offices during the collective period, as

McCarthy has not made a modest factual showing that those individuals were similarly

situated to McCarthy.43

4. Notice

Medicus also objects to several aspects of McCarthy’s proposed notice and

consent form and procedure. Following the conference with the parties, Medicus

submitted its own proposed notice form. After weighing the parties’ positions, the court

adopts the notice and consent forms appended hereto and authorizes McCarthy’s counsel

43 The court further notes that the collective, as conditionally certified, does not include McCarthy himself, as his employment with Medicus ended in November 2018. While the recruiters in the collective were employed at different times than McCarthy, he has made a modest factual showing that they worked similar or identical jobs, were subject to the same common policy or plan (which continues to the present), were paid the same way, and raise the same FLSA claims as McCarthy. Thus, McCarthy has shown – at least for conditional certification purposes – that he is similarly situated to the recruiters in the collective.

21 to circulate those forms to all potential collective members in the following manner and

under the following schedule:

1. No later than 10 days from the date of this order. Defense counsel shall produce in Excel format, subject to appropriate confidentiality designations, the following information regarding putative members of the collective: (1) full name; (2) last known mailing address, with city, state, and zip Code; (3) last known e- mail address(es) (non-company address if applicable); (4) last known telephone number(s); (5) beginning date(s) of employment; and (6) ending date(s) of employment (if applicable). McCarthy “must safeguard” the contact information and shall not use “the information provided by [Medicus] for any purpose whatsoever other than to effectuate the notice authorized by this order.” Curtis v. Scholarship Storage, Inc., 2:14-cv-303-NT,

, at *5 (D. Me. March 18, 2015) (Torreson, J.).

2. 20 days from the date of this order. Plaintiff’s counsel shall send a copy of the court-approved notice and consent form to the putative collective members by First Class U.S. Mail, email, and text message. Plaintiff’s counsel may follow-up the mailed notice and consent forms with contact by telephone to former Medicus employees or those collective members whose mailed contact information is not valid.

3. 60 days from sending notice and consent forms. Recipients of the notice and consent forms shall have 60 days to return their signed consent forms for filing with the court.

4. 30 days from sending notice and consent forms. Plaintiff’s counsel may send, by mail, email, and text message, a second, identical copy of the notice and consent form to putative collective members reminding them of the deadline for submission of signed consent forms.

Conclusion

For the reasons set forth above, McCarthy’s motion for conditional certification of

a collective action44 is GRANTED. Medicus to produce the above-referenced Excel

44 Doc. no. 37. Document numbers 48 and 50 are denied without prejudice.

22 document within 10 days of the date of this order and plaintiff to issue notice and consent

forms as outlined above.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: April 18, 2023

cc: Alyssa White, Esq. Andrew W. Dunlap, Esq. Brooke Lois Lovett Shilo, Esq. Richard Mark Schreiber, Esq. Russell F. Hilliard, Esq. Heather M. Burns, Esq. Courtney H. G. Herz, Esq. James P. Harris, Esq. John-Mark Turner, Esq. Kenneth W. Gage, Esq.

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