In Ondes v. Monsanto Co., 4:11CV197 JAR, (E.D. Mo. Dec. 12, 2011), Judge John A Ross of the United States District Court for the Eastern District of Missouri in St. Louis ruled that the class representative plaintiff in a collective action under the FLSA were similarly situated. Plaintiff alleged that automation and engineering employees were ordered to work off-the-clock and without pay because of budgetary restraints at Monsanto. As a result of this alleged policy, Monsanto failed to pay proper compensation and overtime in violation of the FLSA and Missouri law.
The plaintiff provided evidence to the court that the class included hourly employees that were instructed not to seek pay for hours actually worked. The employer improperly offered comp time and future time off in exchange for not reporting work hours. Plaintiff claimed that the applicable class "were common victims of Monsanto's company-wide policies and practices designed to deny them payment and overtime compensation for all of their hours worked." Davis v. Novastar Mortg., Inc., 408 F.Supp.2d 811, 816 (W.D.Mo.2005). The court determined that the plaintiff met the burden to establish conditional certification of the class and ordered notice to the opt-in class.
Monsanto claimed that the employees at issue were in many different buildings and locations and worked under different schedules and there was a lack of evidence of instruction to work off-the-clock and the employees worked under varied and differing circumstances. The court determined that the conflicting evidence and credibility determinations would not be decided as part of a motion for conditional certification. The court noted "purported differences within the putative class are insufficient to deny conditional class certification."
The motion for class certification sought an order for conditional certification under § 216(b) of the FLSA and sought authorization for plaintiff to send notice to potential opt-in class members. The court noted that under Section 7 of the FLSA employers must pay non-exempt employees overtime at one and one-half times the regular wage. 29 U.S.C. § 207.
The court further noted that "[a] collective action under the FLSA to recover overtime compensation and liquidated damages may be maintained, by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). Unlike a Rule 23 class action, a collective action under the FLSA is pursued on an opt-in basis, requiring employees to provide their consent in writing to join the action. 29 U.S.C. § 216(b); Ford v. Townsends of Arkansas, Inc., No. 4:08cv509, 2010 U.S. Dist. Lexis 46093, at *8 (E.D.Ark. Apr. 9, 2010).
The court noted that a plaintiff's burden at the first stage of the process is not onerous, and "plaintiffs can meet this burden by making 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." Kautsch, 504 F.Supp.2d at 689 (citations omitted); see also Ford, 2010 U.S. Dist. Lexis 46093, at *8 ("A class is similarly situated at this stage if plaintiffs make a modest factual showing, based upon the pleadings and affidavits, that the proposed class members were victims of a single decision, policy, or plan."); Dernovish, 2010 U.S. Dist. LEXIS 2127, *3–4 ("There is no need to show that the would-be members of the class are actually similarly situated or that they are identical, but the plaintiff must present some evidence to demonstrate the class members are similar in important respects and are subjected to similar policies or circumstances.").