Lichy v. Centerline Communications LLC

          MEMORANDUM AND ORDER GRANTING CONDITIONAL COLLECTIVE ACTION CERTIFICATION

          ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.

         Plaintiffs are former employees of Defendants who allege that Defendants did not pay them for all hours worked, and for some overtime hours for which they are owed time-and-a-half pay. Plaintiffs brought this action pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., seeking to recover on behalf of themselves and all others similarly situated. Now before the Court is Plaintiffs' motion to conditionally certify a class and to issue notice to similarly situated employees pursuant to 29 U.S.C. § 216(b). [ECF No. 29]. For the reasons set forth below, the motion is granted.

         I. FACTUAL BACKGROUND

         The following facts are drawn from the deposition of Joshua Delman [ECF No. 29-1], additional documents submitted as exhibits by Plaintiffs [ECF Nos. 29-3, 29-4], and the complaint [ECF No. 1].

         Defendant Centerline Communications, LLC (“Centerline”) is a telecommunications company that supports mobile phone operators in the development, construction, and maintenance of their networks, including cell phone towers. The individual defendants, Joshua Delman and Benjamin Delman, own and operate Centerline. Joshua Delman is the principal, manager, and authorized signatory of the company, and Benjamin Delman is the company's vice president. Centerline is headquartered in Raynham, Massachusetts, and performs work in 25 states.

         Centerline employs construction crews and maintenance crews to perform field operations. A construction crew is usually made up of three employees: a foreman, a lead technician, and a tower technician. The construction crew works together to construct telecommunications sites, which requires crew members to climb towers and install antennas, radios, and cabling, among other tasks. A maintenance crew is usually made up of two employees, a foreman and one other employee, and it performs tasks similar to those of the construction crews. The foreman is responsible for the construction of the site and the crew members, while the lead technician acts at the direction of the foreman, and the tower hand assists the lead technician. Construction crews and maintenance crews report to the same regional operations manager. Every member of the construction and maintenance crews, including the foreman, is paid on an hourly basis. Each named Plaintiff worked for Centerline for some period of time from 2011 to 2015 as a tower technician, a foreman, or both.

         Since 2012 or 2013, Centerline has maintained offices and warehouses in Chicago, Syracuse, Pittsburgh, Philadelphia, and Raynham, which serve the surrounding areas. The warehouse for each region, also known informally by crew members as the “shop, ” typically stores the equipment that crew members use, such as hand tools, ropes, machinery, drills, and trailers, and may also store customer equipment, including antennas, radios, and cabling. Trailers are used to transport customer equipment to the job site.

         Before traveling to a job site together, crew members meet either at the warehouse or a “muster point, ” which is a designated meeting place. Centerline requires its crews to travel together to a work site, unless a project manager has requested that an employee drive directly to the job site, or a crew member has obtained permission to take his or her own vehicle for personal reasons, such as needing to leave early. Ordinarily, however, crew members travel together to and from the job site in a Centerline-owned truck. Each foreman is assigned a company truck and is responsible for transporting the other crew members to the work site.

         When the crews meet at the warehouse prior to traveling to a job site, they may perform work at the warehouse, such as loading material onto the truck, preparing equipment, or conducting vehicle maintenance. The crew members might also have a daily meeting to set goals and objectives, conduct a “Job Safety Review, ” and complete paperwork. In some regions, crews also report to the main office for a weekly safety meeting. At the end of the day, crews return from the job site to the warehouse or the muster point. When they return to the warehouse, the crew members sometimes do work, such as removing trash, unloading the truck, and loading the truck for the next day. In addition, a project manager might direct the crew to return to the warehouse in order to return testing results.

         Centerline has one travel time policy that applies to all construction and maintenance crew employees in all states. The policy at issue in this case was in effect from 2012 to 2015 or 2016, and was set forth in the employee handbook. Under this policy, Centerline paid employees for travel from the warehouse or muster point to the job site. Centerline did not pay employees for the return travel from the work site to the warehouse or muster point, however, unless the job site was more than 130 miles from the office and the project duration was less than a day. Furthermore, travel time, whether to or from the job site, was only ever compensated at the employee's regular hourly rate, and never at the overtime rate. In September 2014, a new “Travel Policy Procedure” document was distributed among the Centerline management team. The document identified three situations in which return travel would be compensated: (1) if the project manager in charge of the assignment requested that the crew return to the shop, (2) if the foreman requested an “exception” due to unusual circumstances, such as heavy traffic or delays due to road closure; or (3) if the distance between the warehouse and the job site was greater than 130 miles. If a crew member needed to do work upon return to the warehouse, such as trash removal, the crew member could “clock in” to be paid for the time spent doing that work, but he or she still was not paid for the time spent making the return trip, unless one of the three exceptions applied.

         Plaintiffs filed this lawsuit in September 2015, alleging that Defendants violated the FLSA by failing to pay them for the return travel time from the job site to the warehouse, and for not paying them for travel time at the overtime rate when they worked more than forty hours per week. [ECF No. 1]. Defendants contend that the FLSA does not require them to pay for travel time. [ECF No. 15].

         II. DISCUSSION

         A. Legal Standard

         The FLSA permits individuals to bring a lawsuit for lost wages “either individually or as part of a collective action comprising ‘other employees similarly situated.'” Prescott v. Prudential Ins. Co., 729 F.Supp.2d 357, 362 (D. Me. 2010) (quoting 29 U.S.C. § 216(b)). “Unlike Federal Rules of Civil Procedure Rule 23 class actions, FLSA collective actions require similarly situated employees to affirmatively opt-in and be bound by any judgment.” Cunha v. Avis Budget Car Rental, LLC, 221 F.Supp.3d 178, 181 (D. Mass. 2016) (quoting Iriarte v. Cafe 71, Inc., No. 15 CIV. 3217 (CM), 2015 WL 8900875, at *2 (S.D.N.Y. Dec. 11, 2015)). “A collective action is thus ‘a fundamentally different creature than the Rule 23 class action' because ‘the existence of a collective action ...