Rivera v. Power Design, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
ALEX RIVERA, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 15-cv-0975 (TSC)
)
POWER DESIGN, INC., et al., )
)
Defendants. )
)

MEMORANDUM OPINION

Plaintiffs Alex Rivera, Medardo Escobar, Jenry Escobar, Alfonso Escobar and Emerson

Lopez (the “Named Plaintiffs”) were employed as electricians on a condominium development

project at 460 New York Avenue NW in Washington, D.C. (the “Project”) in December 2014.

(See Amended Collective and Class Action Complaint (ECF No. 1-2 at ECF pp. 9-24) (the

“Amended Complaint”) ¶¶ 4, 7, 10, 13, 16). They have brought claims against their alleged joint

employers – Defendants Power Design, Inc., E.A. Electric, LLC and Emerson Alvarado – on

behalf of themselves and others similarly situated, under the Fair Labor Standards Act, 29 U.S.C.

§ 201, et seq. (the “FLSA”), the D.C. Minimum Wage Act, D.C. Code § 32-1001, et seq. (the

“DCMWA”), the D.C. Wage Payment Collection Law, D.C. Code § 32-1301, et seq., and the

Workplace Fraud Act, D.C. Code § 32-1321.01, et seq. The Named Plaintiffs allege that they

were not paid the D.C. or federal minimum wage or overtime for approximately one month of

work performed for the Defendants on the Project. (Am. Compl. ¶¶ 29, 39-44, 51-53, 67-68).

The Named Plaintiffs’ Motion for Conditional Certification of Collective Action and to

Facilitate Notice (the “Motion”) requests that the court conditionally certify this case as a

collective action pursuant to the FLSA, 29 U.S.C. § 216(b), and the DCMWA, former D.C. Code
§ 32-1012(b), on behalf of “all nonexempt employees who performed construction duties for

Power Design at the [Project] from April 2012 to the final disposition of this action.” (Motion

at 1). The Named Plaintiffs also request that the court facilitate notice to all such persons of their

rights to join in this case. (Id.).

Upon consideration of the Motion and supporting memorandum, Power Design’s

opposition thereto, and the Named Plaintiffs’ reply in support thereof, and for the reasons set

forth below, the Named Plaintiffs’ Motion is hereby GRANTED IN PART and DENIED IN

PART.

I. FACTUAL AND PROCEDURAL BACKGROUND

a. Factual Background

The Named Plaintiffs allege that Defendants employed them as electricians on the Project

in December 2014. (See Am. Compl. ¶¶ 4, 7, 10, 13, 16). Power Design asserts that while it

served as an electrical installation subcontractor on the Project, it also subcontracted certain

electrical installation work on the Project out to several of its own subcontractors, including E.A.

Electric. (See Opp’n at 1). Power Design also asserts that the Named Plaintiffs worked for E.A.

Electric and its owner, Emerson Alvarado, not for Power Design itself. (See id. at 1, 6).

The Named Plaintiffs allege, however, that Power Design used E.A. Electric as a “labor-

only broker,” and that Power Design was their joint employer along with E.A. Electric and

Alvarado, citing Power Design’s “activities at the Project and its control over workers hired by

its labor brokers.” (Reply at 2). The Named Plaintiffs allege, for example, that (i) Power Design

provided all instructions to them, with an E.A. Electric employee serving only to translate the

instructions from English to their native Spanish; (ii) they were required to sign in and out each

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day on Power Design timesheets; and (iii) they were required to wear safety equipment with

Power Design’s logo. (See id. at 2-3 (citing Am. Compl. ¶¶ 32-33)).

The Named Plaintiffs also allege that (i) they observed between ten and fifteen other

workers performing similar work on the Project while they were there (see Mot. Exs. 1-5

(Declarations of Each Named Plaintiff) ¶ 10); (ii) a Power Design supervisor closely monitored

and directed the work of these individuals, all of whom also recorded their hours on Power

Design timesheets (see Am. Compl. ¶¶ 32, 36); and (iii) about five of these individuals stated

that they had not received the pay they had been promised (see Mot. Ex. 3 (Declaration of Jenry

Escobar) ¶ 10).

b. Procedural Background

The Named Plaintiffs filed their initial complaint against the Defendants in the Superior

Court of the District of Columbia in April 2015. (See Complaint for Unpaid Wages (the “Initial

Complaint”)). The Initial Complaint alleged that the Defendants violated the DCMWA and the

D.C. Wage Payment Collection Law in failing to pay the Named Plaintiffs for work they

performed on the Project, and requested relief including $11,040 in unpaid wages and $33,120 in

liquidated damages. (See id.).

On May 13, 2015, the Named Plaintiffs filed an Amended Complaint in Superior Court,

adding claims for violation of the FLSA and the Workplace Fraud Act. (See Am. Compl.

¶¶ 46-56, 70-75). They also restyled their action as, inter alia, one brought on behalf of

themselves and putative FLSA and DCMWA opt-in collectives under 29 U.S.C. § 216(b) and

D.C. Code § 32-1012(b). (See id. ¶¶ 22-26). Putative plaintiffs were alleged to include

individuals who performed construction duties for Power Design at the Project from April 2012

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to the final disposition of this action, who were similarly undercompensated for their work. (See

id. ¶¶ 22-23).

In June 2015, Power Design, with the consent of E.A. Electric and Alvarado, removed

this action to federal court pursuant to 28 U.S.C. § 1441(c) on the ground that the addition of the

FLSA claim conferred jurisdiction upon this court pursuant to 28 U.S.C. § 1331. (See Notice of

Removal ¶¶ 5, 10).

In July 2015, the Named Plaintiffs filed a status report informing this court that they had

settled with E.A. Electric and Alvarado while the case was still in Superior Court. The court

dismissed the action with prejudice against E.A. Electric and Alvarado the day after the status

report was filed. 1

In August 2015, the Named Plaintiffs filed the instant Motion, requesting the court to

conditionally certify this case as a collective action pursuant to the FLSA, 29 U.S.C. § 216(b),

and the DCMWA, former D.C. Code § 32-1012(b). Specifically, the Named Plaintiffs seek

conditional certification on behalf of “all nonexempt employees who performed construction

duties for Power Design at the [Project] from April 2012 to the final disposition of this action.”

(Mot. at 3). The Named Plaintiffs also request that the court facilitate notice to all such persons

of their rights to join in this case. (See id.).

Power Design opposes conditional certification on numerous grounds. First, it argues

that the Named Plaintiffs’ allegations that they are similarly situated to the putative plaintiffs

(i) are conclusory and insufficient; (ii) fail to provide sufficient evidence that putative plaintiffs

even exist; and (iii) overlook the fact that the Named Plaintiffs received the wages at issue in this

1In December 2015, the court granted Power Design’s Consent Motion to Add Necessary
Defendants, once again making E.A. Electric and Alvarado party defendants to this action.

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action via their settlement with E.A. Electric and Alvarado, while the putative plaintiffs have not.

Second, Power Design argues that it was not the Named Plaintiffs’ or the putative plaintiffs’

employer-in-fact. Third, Power Design asserts that it is not capable of providing the requested

notice to putative class members because it does not have their names and last known addresses.

II. FLSA CERTIFICATION

The FLSA requires employers to pay minimum wage for compensable working time and

an overtime premium for compensable hours worked in excess of forty hours per week. See

29 U.S.C. §§ 206, 207. The FLSA contemplates what is commonly referred to as a “collective

action,” in which named plaintiffs bring claims on behalf of other “similarly situated” employees

who become part of the action only upon filing a written consent:

An action . . . may be maintained against any employer . . . by any one or more
employees for and [o]n behalf of himself or themselves and other employees
similarly situated. No employee shall be a party plaintiff to any such action unless
he gives his consent in writing to become such a party and such consent is filed in
the court in which such action is brought.

29 U.S.C. § 216(b). “With collective actions, district courts have considerable discretion in

managing the process of joining similarly situated employees in a manner that is both orderly

and sensible.” Dinkel v. Medstar Health, Inc., 880 F. Supp. 2d 49, 52 (D.D.C. 2012); see also

Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989).

Federal courts typically engage in a two-stage inquiry when evaluating whether an FLSA

claim should proceed as a collective action. See Dinkel, 880 F. Supp. 2d at 52. “At the first

stage, often loosely referred to as ‘conditional certification,’ the named plaintiffs must present

some evidence, beyond pure speculation, of a factual nexus between the manner in which the

employer’s alleged policy affected [them] and the manner in which it affected other employees.”

Id. at 53 (quotation and citation omitted); see also Eley v. Stadium Grp., LLC, No. 14-cv-1594

(KBJ), 2015 WL 5611331, at *1 (D.D.C. Sept. 22, 2015). Put differently, “plaintiffs must make

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a ‘modest factual showing sufficient to demonstrate that they and potential plaintiffs together

were victims of a common policy or plan that violated the law.’” Blount v. U.S. Sec. Assocs.,

945 F. Supp. 2d 88, 92 (D.D.C. 2013) (quoting Hunter v. Sprint Corp., 346 F. Supp. 2d 113, 117

(D.D.C. 2004)). This showing “has been described as ‘not particularly stringent, fairly lenient,

flexible, [and] not heavy.’” Dinkel, 880 F. Supp. 2d at 53 (alteration in original) (quoting

Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1261 (11th Cir. 2008)) (quotation

omitted). This showing may also “be satisfied based on pleadings and affidavits.” Blount, 945

F. Supp. 2d at 93.

If the named plaintiffs make the required showing, then a court “may conditionally

certify the class and may facilitate notice of the collective action to potential plaintiffs to give

them the opportunity to opt in to the litigation.” Id. at 92. The case then “proceeds as a

representative action through discovery.” Id.

The second stage of the certification process occurs after discovery, at which point the

defendant “may move to decertify the class based on the evidentiary record developed during the

discovery period.” Id. at 93. At that point, the court conducts a more searching inquiry to

determine “whether each plaintiff who had opted in . . . is in fact similarly situated to the named

plaintiff[s].” Dinkel, 880 F. Supp. 2d at 53 (alteration in original) (quotation and citation

omitted).

This case is at the conditional certification stage, and therefore, as noted above, the

Named Plaintiffs’ burden at this stage is not onerous and may be satisfied based on the pleadings

and affidavits.

The Named Plaintiffs assert that they and the prospective class members:

are similarly situated in that they all: (a) had similar duties; (b) performed similar
tasks; (c) were protected by the same requirements under the FLSA to receive

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 minimum wages and overtime wages unless specifically exempted; (d) were
subjected to similar pay plans; (e) were required to work and did work in excess of
forty hours per week; and (f) . . . were not paid for all hours worked.

(Am. Compl. ¶ 24). Power Design argues that the Named Plaintiffs have failed to sufficiently

establish that they are similarly situated to any putative plaintiffs. The court finds that at this

stage, the Named Plaintiffs have met their burden of showing that they are similarly situated to

other putative plaintiffs.

As an initial matter, the court disagrees with Power Design’s assertion that the Named

Plaintiffs have insufficiently alleged the existence of putative plaintiffs. The Named Plaintiffs

each assert that they observed between ten and fifteen other workers performing similar work as

them on the Project. (See Mot. Exs. 1-5 (Declarations of Each Named Plaintiff) ¶ 10). They also

allege that a Power Design supervisor closely monitored and directed the work of these

individuals, all of whom recorded their hours on Power Design timesheets. (See Am. Compl.

¶¶ 32, 36). Lastly, a declaration from one of the Named Plaintiffs states that about five putative

plaintiffs told him that they had not received the pay they had been promised. (See Mot. Ex. 3

(Declaration of Jenry Escobar) ¶ 10).

Power Design contends that the dearth of any information pertaining to these putative

plaintiffs is fatal to the Motion. But allegations regarding the kinds of missing information cited

by Power Design – i.e., the putative plaintiffs’ specific job titles, the Power Design subcontractor

with whom they contracted, their pay rates, hours worked, and the like – are not necessary at this

stage of the proceedings. (See Opp’n at 10). The appropriate time to address the existence or

absence of such information is at the second stage of the certification process, at which time

Power Design “may move to decertify the class based on the evidentiary record developed

during the discovery period,” thus requiring the court to make a factual determination as to

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“whether the plaintiffs who have opted in are in fact ‘similarly situated’” to the Named Plaintiffs.

Blount, 945 F. Supp. 2d at 93 (citations omitted).

All the Named Plaintiffs are required to do at this point in the proceedings is “present

some evidence, beyond pure speculation, of a factual nexus between the manner in which [Power

Design’s] alleged policy affected” them and the manner in which it affected the putative

plaintiffs. Dinkel, 880 F. Supp. 2d at 53 (quotation and citation omitted). The court finds that

the Named Plaintiffs have satisfied their modest burden by alleging that both they and the

putative plaintiffs worked for Power Design on the Project and were undercompensated in

violation of the FLSA. (See, e.g., Mem. at 3; Am. Compl. ¶¶ 35, 37-43). The fact that Power

Design disputes that it controlled the Named Plaintiffs’ or putative plaintiffs’ work, and its

assertion that it had no control over its subcontractors’ employees, are of no moment at this

point, given that plaintiffs may satisfy their burden at the conditional certification stage by

reference to the pleadings and affidavits. The appropriate time to address Power Design’s

arguments in this regard is at the second stage of the certification process. 2

Power Design also argues that, because it was not the Named Plaintiffs’ or putative

plaintiffs’ employer-in-fact, the Named Plaintiffs cannot show that they are similarly situated to

the putative plaintiffs. (Opp’n at 6). However, given the modest showing that plaintiffs must

make at the conditional certification stage, “courts have reserved consideration of whether

2 One of Power Design’s arguments is that the Named Plaintiffs are not similarly situated to the
putative plaintiffs because the Named Plaintiffs received the wages at issue in this action via
their settlement with E.A. Electric and Alvarado, whereas any putative plaintiffs have not. (See
Opp’n at 10-11). Power Design cites no case law in support of the proposition that this
settlement somehow destroys the factual nexus between the manner in which Power Design’s
alleged policy affected the Named Plaintiffs and the manner in which it affected any putative
plaintiffs such that conditional certification would be inappropriate. The court is not persuaded
by this unsupported argument.

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separate employers are joint employers for a final, stage two determination.” Manning v.

Goldbelt Falcon, LLC, No. 08-cv-3427 (JEI), 2010 WL 3906735, at *3 (D.N.J. Sept. 29, 2010);

see also Cedillos-Guevara v. Mayflower Textile Servs., Co., 14-cv-196 (GLR), 2014 WL

7146968, at *3 (D. Md. Dec. 12, 2014) (“Given the limited amount of evidence presented and

the low burden of proof required for conditional certification motions, the Court will reserve

judgment on whether Defendants qualify as joint employers under the FLSA.”); Johnson v. VCG

Holding Corp., 802 F. Supp. 2d 227, 239 (D.Me. 2011) (issues relating to liability as a joint

employer “are properly reserved for dispositive motions or for the second stage of the class

certification process”).

Per the foregoing, the court finds that the Named Plaintiffs have sufficiently alleged at

this stage of the case that Power Design was their employer under the FLSA by alleging that:

i. Power Design supervisors monitored and directed their work on the
Project (see Am. Compl. ¶ 32);

ii. “Power Design provided all safety equipment to [them], including helmets
and vests [which] had Power Design’s logo” on them (id. ¶ 33);

iii. “Power Design provided all specialized tools and materials” needed for
the job (id. ¶ 35);

iv. They “recorded their hours on timesheets created and maintained by
Power Design and featuring only the Power Design logo” (id. ¶ 36); and

v. E.A. Electric and Alvarado’s only roles were “to identify and deliver
laborers to work under the direction and control of Power Design
supervisors, and to serve as ‘pass throughs’ for wages Power Design
owed” them (id. ¶ 34).

The court likewise finds that the Named Plaintiffs have sufficiently alleged that Power Design

was also the putative plaintiffs’ employer by alleging that:

i. Each of the five Named Plaintiffs observed “between 10 and 15 other
workers perform[ing] similar work as [them] around the same time”
(Mot. Exs. 1-5 (Declarations of Each Named Plaintiff) ¶ 10);

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 ii. The same Power Design supervisor who oversaw their work also “closely
monitored and directed the work of” the other workers (Am. Compl. ¶ 32);

iii. The other workers also “recorded their hours on timesheets created and
maintained by Power Design and featuring only the Power Design logo”
(id. ¶ 36); and

iv. About five of the other workers told Named Plaintiff Jenry Escobar “that
they had not received the pay they were promised” (Mot. Ex. 3
(Declaration of Jenry Escobar) ¶ 10).

Power Design also asserts that even if it were liable to the Named Plaintiffs as a joint

employer, the Named Plaintiffs fail to allege the employment relationship between Power Design

and the putative plaintiffs – i.e., they fail to allege which of Power Design’s subcontractors were

directly responsible for hiring, managing and paying the putative plaintiffs. (See Opp’n at 6-7).

Power Design claims that this failure leaves it “guessing” as to who these putative plaintiffs

could be. (Id.). The court finds this argument unpersuasive for several reasons. First, as the

Named Plaintiffs correctly point out, the Amended Complaint alleges that at least five other

employees also worked for “the Defendants” – which the court takes to mean all three

Defendants – on the Project. (See Am. Compl. ¶ 29). Thus, E.A. Electric is, in fact, alleged to

have hired putative plaintiffs. That is all that is necessary at this juncture of the case.

Moreover, while the Named Plaintiffs have not identified Power Design’s other

subcontractors on the Project, it is fair to infer that Power Design knows the identities of those

subcontractors, and will disclose their identities during the discovery period between the first and

second stages of the certification process. The court agrees with the Named Plaintiffs that the

same considerations that applied in Lima v. Int’l Catastrophe Solutions, Inc. are applicable here:

Defendants’ pay records and agreements to subcontract will easily reveal whether
a common plan existed to improperly pay overtime salaries. It seems appropriate
to certify the collective action at this time and revisit the question later after some
discovery. If the allegations regarding the [contract between a company and its
subcontractor] prove to be true, it would be reasonable to conclude that [the
company] may also have engaged in these same practices with other subcontractors.

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 It is unlikely that the other subcontractors’ workers received a different rate of pay
or did substantially different work. If sufficient evidence is not developed to
demonstrate that the other subcontractors were not involved in the same alleged
scheme or practice, the Court may decertify the collective action as to those parties
after sufficient discovery is conducted.

493 F. Supp. 2d 793, 799-800 (E.D. La. 2007) (citation omitted).

Given that the Named Plaintiffs have sufficiently alleged that Power Design employed

them and the putative plaintiffs on the Project, and given the lenient standard at this early stage

of the case, the court is satisfied that the Named Plaintiffs and the putative plaintiffs are similarly

situated with respect to Power Design’s alleged policies so as to justify conditional certification

and notice to the putative plaintiffs.

In light of the foregoing, the court will conditionally certify the following FLSA class

pursuant to 29 U.S.C. § 216(b):

All non-exempt employees who performed construction duties for Power
Design and/or its subcontractors at the condominium development project at
460 New York Avenue NW, Washington, D.C., from April 2012 to the final
disposition of this action.

III. FACILITATION OF NOTICE

The Supreme Court has recognized that the benefits of a collective action “depend on

employees receiving accurate and timely notice . . . so that they can make informed decisions

about whether to participate.” Sperling, 493 U.S. at 170. “Because trial court involvement in the

notice process is inevitable in cases with numerous plaintiffs where written consent is required

by statute, it lies within the discretion of a district court to begin its involvement early, at the

point of the initial notice, rather than at some later time.” Id. at 171.

In the instant Motion, the Named Plaintiffs request that the court order Power Design to

provide them with the names and last known addresses of all non-exempt employees who

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performed construction duties for Power Design at the Project from April 2012 to the final

disposition of this action. (See Mem. at 4).

Power Design asserts that ordering it to provide the Named Plaintiffs with the last known

addresses of the putative plaintiffs will not facilitate notice to class members because it does not

have their names or contact information, given that it subcontracted electrical installation work at

the Project to E.A. Electric and others. In support of this claim, Power Design provides a

Declaration of its Legal Counsel, who states that he is “familiar with Power Design’s corporate

structure and its executive, administrative, financial and management functions,” and that

• “Power Design does not have documents or information in its possession,
custody, or control pertaining to the construction workers, including
electricians and laborers, hired by its subcontractors, including E.A. Electric,
to work on the Project”;

• “Power Design does not have in its possession, custody or control the names
or contact information of the subcontractors’ workers who performed
electrical installation work or other duties at the Project”; and

• “Power Design does not have in its possession, custody or control any time
sheets, pay rate, hours worked or payroll information regarding
subcontractors’ workers who performed electrical installation work or other
duties at the Project.”

(Opp’n Ex. 2, Declaration of Bill Jordan (the “Jordan Declaration”) ¶¶ 1-2, 4-6).

The Named Plaintiffs take issue with Power Design’s claims, arguing that the facts as

pled indicate that the individuals who worked for Power Design and/or its labor brokers on the

Project were required to sign in and out on Power Design timesheets each day, which Power

Design presumably still has in its possession. (See Reply at 5-6). The Named Plaintiffs assert

that identifying the information needed to facilitate notice should be as simple as Power Design

searching its own business and employment records and reaching out to its labor brokers on the

Project to ask them to do the same with their business and employment records. (See id.).

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 The court agrees with the Named Plaintiffs. As an initial matter, the Jordan Declaration

provides only the vaguest support for its conclusions – i.e., a Power Design lawyer’s purported

familiarity with the company’s “corporate structure and its executive, administrative, financial

and management functions.” (Jordan Declaration ¶ 2). It says nothing of whether the declarant,

or anyone else associated with Power Design (such as, for example, an HR employee or an

employee specifically tasked with maintaining the company’s business and/or employment

records), conducted any kind of search for the names and addresses of potential class members.

The Jordan Declaration also focuses solely on Power Design’s subcontractors on the

Project, even though potential class members would include not only those who worked for

Power Design’s subcontractors, but also those who worked directly for Power Design. For

example, Power Design’s representation that it subcontracted out “certain electrical installation

work” in its role as “an electrical installation subcontractor on the Project” would seem to

indicate that certain other work was performed directly by the company’s employees. (Opp’n

at 1) (emphasis added). Individuals employed directly by Power Design who performed

construction duties at the Project would fall within the putative class certified by this court.

Surely, at the very least, Power Design can provide the Named Plaintiffs with the names and

addresses of any such individuals.

Moreover, as the Named Plaintiffs point out, Power Design can simply contact the

subcontractors it worked with on the Project to request the names and addresses of any potential

class members. Power Design’s argument that it is unable to do so because the Named Plaintiffs

have not identified those subcontractors defies common sense. All that Power Design needs to

know in order to request the names and last known addresses of potential class members from its

subcontractors on the Project is (i) the scope of the putative class (which is provided by this

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Memorandum Opinion and the accompanying Order), and (ii) the names of those subcontractors

(which Power Design presumably possesses given that it did business with them on the Project).

Given the foregoing, and in light of the fact that “[c]ourts routinely order the production

of names and addresses in collective actions,” Blount, 945 F. Supp. 2d at 97; see also Castillo v.

P & R Enterprises, Inc., 517 F. Supp. 2d 440, 448 (D.D.C. 2007); Hunter v. Sprint Corp., 346 F.

Supp. 2d 113, 121 (D.D.C. 2004), the court hereby orders Power Design to (i) thoroughly review

its business and employment records for the Project for the relevant class period in order to find

the names and addresses of any potential class members, and (ii) contact any of its

subcontractors on the Project that may have records relating to any potential class members and

request that they do the same. Power Design will have until three months from the issuance date

of this Memorandum Opinion to provide the Named Plaintiffs with the names and last known

addresses of all potential members of the class conditionally certified above.

Additionally, the court notes that while the Named Plaintiffs asserted in their Motion that

they would “provide the form of a proposed notice at the time of supplementation of this motion”

(Mot. at 4), it does not appear that they have ever provided such form to the court. Therefore,

the court hereby orders the Named Plaintiffs to submit a proposed form of notice for the plaintiff

class conditionally certified above by no later than one month from the issuance date of this

Memorandum Opinion.

IV. DCMWA CERTIFICATION

The Named Plaintiffs acknowledge that the DCMWA portion of their Motion relies not

on the present iteration of D.C. Code § 32-1012(b), which was in effect when their Initial

Complaint was filed in Superior Court in April 2015, but on the version of the statute that was in

effect in December 2014, when they performed the work at issue in this case. (See Mot. at 1 &

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n.1, 3; Mem. at 1-2). This former version of the DCMWA provided for an opt-in consent

procedure mirroring that of the FLSA:

[An] [a]ction to recover damages . . . may be maintained . . . by any 1 or more
employees for and on behalf of the employee and other employees who are
similarly situated. No employee shall be a party plaintiff . . . unless the employee
gives written consent to become a party and the written consent is filed in the court
in which the action is brought.

D.C. Code § 32-1012(b) (2001) (emphasis added); compare with 29 U.S.C. § 216(b). When this

version of the DCMWA was in effect, federal courts routinely evaluated FLSA and DCMWA

claims using the same standards and procedures for conditional certification and notice. (See,

e.g., Opp’n at 4 & nn.3, 4).

In February 2015 – about two months before the Initial Complaint was filed – the

DCMWA was amended. Its opt-in and written-consent procedures were excised and replaced

with broader language providing that actions under the DCMWA “may be maintained by one or

more employees who may designate an agent or representative to maintain such action for and

on behalf of themselves or on behalf of all employees similarly situated.” D.C. Code § 32-

1308(a)(1); see also D.C. Code § 32-1012(a) (“A civil action [under the DCMWA] may be

commenced according to § 32-1308.”).

“Without opt-in and written-consent procedures that restrict the right of recovery to those

who affirmatively file consents to participate in the suit, group claims brought under the new

DCMWA are likely to resemble class actions, rather than collective actions,” in which case they

would presumably be governed by Federal Rule of Civil Procedure 23. Eley, 2015 WL 5611331,

at *4 (quotation, citations and alterations omitted). Thus, as was the case in Eley, it may well be

that the Named Plaintiffs “cannot proceed on their DCMWA claims utilizing the procedures

applicable to the FLSA, and instead, they may be required to seek class certification under

Rule 23.” Id. (citation omitted).

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 While the parties have acknowledged that the Named Plaintiffs are moving pursuant to

the version of D.C. Code § 32-1012 that was in effect during the month that they worked on the

Project, the parties do not explain why this is the correct approach. (See Mot. at 1 & n.1, 3;

Mem. at 1-2; Opp’n at 3 & n.2). For example, neither party addresses why the Named Plaintiffs

should not be required to proceed with their DCMWA claim under the version of section

32-1012 that was in effect at the time they filed their Initial Complaint (i.e., the present version).

Similarly, neither party addresses the question of whether the present version of section 32-1012

applies retroactively under the circumstances here.

The court will not grant the Motion as to the Named Plaintiffs’ DCMWA claim in the

absence of any briefing on what version of D.C. Code § 32-1012 applies to that claim. If

Plaintiffs intend to further pursue collective certification and the facilitation of notice under the

DCMWA, they must file a supplemental brief addressing the question of what version of section

32-1012 properly applies to their DCMWA claim – i.e., (i) the former version of the statute,

which was in effect when they were performing the work at issue in this case, or (ii) the present

version of the statute, which was in effect when they filed their Initial Complaint. See, e.g., Eley,

2015 WL 5611331, at *4 (“if Plaintiffs wish to pursue their DCMWA claims collectively, they

will need to submit supplemental briefing that addresses the impact of the new DCMWA

language on these claims”). If the Named Plaintiffs elect to file such a brief, it must be filed by

no later than two months from the issuance date of this Memorandum Opinion. If the Named

Plaintiffs file such a brief, a response may be filed by no later than one month thereafter.

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V. CONCLUSION

For the reasons set forth above, the Named Plaintiffs’ Motion for Conditional

Certification of Collective Action and to Facilitate Notice is hereby GRANTED IN PART and

DENIED IN PART.

An appropriate Order accompanies this Memorandum Opinion.

Date: March 28, 2016

Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge

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