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Class conditionally certified in FLSA ‘rounding’ suit

Virginia Lawyers Weekly//May 19, 2022

Class conditionally certified in FLSA ‘rounding’ suit

Virginia Lawyers Weekly//May 19, 2022

Where plaintiffs alleged their employer underpaid hourly employees by rounding time entries, and offered affidavits showing they worked the same or similar hours, performed the same or similar duties and operated the same or similar equipment as all putative subclass members, a class was conditionally certified.


Charlie Stacy and Clifford Allen filed this class action on behalf of themselves and all individuals similarly situated, alleging that defendants violated Virginia law by not paying overtime or minimum wage to its workers and failing to provide accurate itemized wage statements. The plaintiffs have moved for class certification of their state law claims pursuant to Rule 23 of the Federal Rule of Civil Procedure.

Rule 23(a) factors

To satisfy numerosity, the plaintiff must show that the class is so numerous that joinder of all members is impracticable. A class of only 18 members has been approved. Here, the putative class would likely include at least 300 persons. The court therefore finds that numerosity is satisfied and that class members are easily identifiable from the defendants’ employment records.

As to typicality, the defendants do not dispute that the named plaintiffs satisfy this requirement. The court agrees. The named plaintiffs are members of the class and of each of the subclasses. They worked the same or similar hours, performed the same or similar duties and operated the same or similar equipment as all putative subclass members. They allege that while employed by the defendants, they were subject to the same allegedly unlawful rounding practice and as a result, were not compensated for all hours worked in violation of Virginia law.

As to commonality, the court finds that the plaintiffs have put forth sufficient evidence that there is a common uniform policy applicable to all putative class members that may be unlawful: the defendants’ time rounding practice. More specifically, the common contention alleged by the plaintiffs is that even though defendants maintain records of actual hours worked, the rounding policy systemically decreased the timing recognized as accrued, resulting in a company-wide practice of underpaying hourly employees.

While there may be factual differences between class members regarding how much time was spent completing pre-shift activities, that alone does not defeat commonality. All putative class members’ claims arise from the same conduct (defendants’ rounding practice) and are based on the same legal theory (violation of Virginia’s wage and hour statutes and common law). This is sufficient to satisfy commonality.

Finally, the named plaintiffs do not appear to have any interest antagonistic to the rest of the putative class. Moreover, plaintiffs’ counsel has extensive experience litigating complex wage and hour class and collections actions, and there are no apparent conflicts of interest for counsel.

Rule 23(b) factors

Turning to the predominance requirement under Rule 23(b), the most prevalent issue for each subclass is whether defendants’ time rounding practice, in connection with its directives regarding pre-shift activities, violates Virginia law. The defendants’ time rounding practice affected all putative class members. While some factual differences may exist, for example, the court nevertheless finds that class issues will predominate over individual issues — that is, whether the defendants’ compensation system cannot account for the time required to perform mandatory pre-shift work.

The defendants assert that the companies manufacture different products at separate facilities with separate management. Even accepting this as true, the evidence shows that the same policies and procedures regarding timekeeping and safety requirements apply to every facility, without room for discretion at the local facility level.

The defendants argue that instructions about complying with defendants’ rounding practice are provided by human resources personnel at each facility, and that no one is instructed to complete work without clocking-in. The fact that different personnel onboard new employees regarding defendants’ timekeeping systems, however, does not bear on whether the same rounding practice applies.

Finally the court finds that a class action is superior to other methods of adjudicating this controversy. The potential small amount of individual damages compared to the financial burden for individual plaintiffs to litigate their claim demonstrate the efficiencies and benefits of class wide resolution. None of the parties have identified separate ongoing litigation concerning the issues raised in this case. The defendants’ facilities are located in this judicial district, and there is no reason that this court would not be the best forum to resolve the dispute. Finally, the number of putative class members does not pose significant manageability concerns.

The court finds that plaintiffs’ proposed notice is sufficient. The defendants must therefore produce a list with the name, job title, last known mailing address, dates of employment, shift assignment and location of employment for putative plaintiffs within 15 days of this opinion and order.

Plaintiffs’ motion for class certification and court-authorized notice granted.

Stacy v. Jennmar Corporation of Virginia Inc., Case No. 1:21-cv-00015, May 6, 2022. WDVA at Abingdon (Jones). VLW 022-3-191. 22 pp.

VLW 022-3-191

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