United States District Court, D. Nebraska
SECOND MEMORANDUM AND ORDER NUNC PRO TUNC
LYLE E. STROM, Senior District Judge.
This matter is before the Court on plaintiffs' motion for conditional collective action certification under the Fair Labor Standards Act ("FLSA") and certification of state law claims under Rule 23 (Filing No. 70). The plaintiffs filed a brief (Filing No. 71) and index of evidence (Filing No. 72) in support of their motion. Defendants have filed a brief (Filing No. 91) and indices of evidence (Filing Nos. 92 and 93) in opposition of the motion. Plaintiffs filed a reply brief (Filing No. 99) and index of evidence (Filing No. 100). The motion will be granted.
Defendants are Werner Enterprises, Inc. and Drivers Management, L.L.C. (collectively "Werner"). Werner is a trucking company. Plaintiffs are current and former employees of Werner. The plaintiffs allege Werner has violated the FLSA and various state law including the Nebraska Wage and Hour Act ("NWHA"). Essentially, the plaintiffs claim that Werner allowed its employees to opt in to a " per diem " program which circumvented minimum wage regulations. The per diem program offers Werner's employees tax-free reimbursement for each day its drivers spend away from home. Importantly, Werner deducts this tax-free pay from the drivers' wages.
I. The FLSA
The FLSA authorizes claims "by any one or more employees for and in [sic] behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). Neither the FLSA itself nor the Eighth Circuit have defined "similarly situated." Petrone v. Werner Enters., Inc., 8:12CV307, 2012 WL 4848900, at *2 (D. Neb. Oct. 11, 2012) (citing Schleipfer v. Mitek Corp., 1:06CV109 CDP, 2007 WL 2485007, *3 (E.D. Mo. Aug. 29, 2007)). However, the practice of district courts in the circuit is to apply a two-step approach in making a determination. Id. (citing Littlefield v. Dealer Warranty Servs., LLC, 679 F.Supp.2d 1014, 1016-17).
First, early in the litigation process, the class is conditionally certified upon plaintiffs' showing that the proposed class is similarly situated. Id. "The plaintiff's burden at [this] stage is not onerous." Id. Conditional certification allows plaintiffs to move forward with identification of proposed class members and notification of the opportunity to opt in. Once, the proposed class members have been identified and have voiced their consent to participation and discovery has closed, defendants have the opportunity to move for decertification of the class. Id. At that point, "the court must determine whether the plaintiffs are, in fact, similarly situated." Id.
The plaintiffs have provided evidence of Werner's per diem pay program and that this program provided less than the minimum hourly wage for an employee. This evidence illustrates that the putative class members were victims of a single decision, policy, or plan. See Schleipfer, 1:06CV109 CDP, 2007 WL 2485007, *3 (citing Davis v. Novastar Mortg., Inc., 408 F.Supp.2d 811, 815 (W.D. Mo. 2005)). Different members of the class may receive different damage awards, but this fact is insufficient to defeat the plaintiffs' certification at this stage.
II. Rule 23(a)
For purposes of certifying the plaintiffs' class for its non-FLSA claims, the Court proceeds to Rule 23 analysis. Plaintiffs have the burden to show that the class should be certified and the requirements of Rule 23 are met. Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994). The plaintiffs must prove each element of Rule 23. Those elements are (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 26(a)(1)-(4).
A class must be so numerous that joinder is impracticable. Joinder need not be impossible; it need only be difficult. See Evans v. Am. Credit Sys., Inc., 222 F.R.D. 388, 393 (D. Neb. 2004). Though no specific number is required to reach numerosity, as little as forty has qualified. Harris v. D. Scott Carruthers & Assoc., 270 F.R.D. 446, 450 (D. Neb. 2010). Since November 27, 2007, 63, 609 Werner employees have enrolled into the per diem plan in question. This figure is clearly too large for joinder to be practicable. The class is sufficiently numerous.
The questions of law or fact common to class members must predominate over questions affecting individual members so that the Court concludes "that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023, 1029 (8th Cir. 2010). "[A] proponent of certification must satisfy the commonality requirement by showing that a class-wide proceeding will generate common answers apt to drive the resolution of the litigation.'" Bennet v. Nucor Corp., 656 F.3d 802, 814 (8th Cir. 2011).
Several questions of fact and law present themselves in this class. Werner reduced the pay of those who participated in the per diem program by its per diem reimbursement. Whether this method of payment is contrary to law is a common question to all those who participated in the per diem ...