United States District Court, D. Massachusetts
ANDREW LICHY, MARK BIXLER, MARK WALTERS, FREDERICK SPEER, and RYAN NIEMEYER, Plaintiffs,
CENTERLINE COMMUNICATIONS LLC, JOSHUA DELMAN, and BENJAMIN DELMAN, Defendants.
MEMORANDUM AND ORDER GRANTING CONDITIONAL COLLECTIVE
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.
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.
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].
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.
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.
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.
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.
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
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.
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].
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 ...