Whiteman v. Wardlaw Consulting Services, Inc. et al

Western District of Texas, txwd-6:2016-cv-00312

Opposed MOTION to Certify Class FLSA Collective Action by TIMOTHY WHITEMAN.

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Case 6:16-cv-00312-RP-JCM Document 12 Filed 12/20/16 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION TIMOTHY D. WHITEMAN, § individually, and on behalf of others § similarly situated, § § CIVIL ACTION NO. 6:16-cv-312-Plaintiffs, § RP-JCM § v. § § WARDLAW CONSULTING § SERVICES, INC., WILLIAM F. § WARDLAW, MICHAEL N. § Collective Action under WARDLAW and REBECCA W. § 29 U.S.C. § 216(b) MEADOWS, § § Defendants. § PLAINTIFF’S MOTION FOR NOTICE TO POTENTIAL PLAINTIFFS AND CONDITIONAL CERTIFICATION Named Plaintiff Timothy D. Whiteman, on behalf of himself and all similarly situated employees (collectively, "Plaintiffs"), presents this Motion for Notice to Potential Plaintiffs and Conditional Certification, and shows as follows: I. OVERVIEW This is not a Rule 23 Motion for class certification; it is a motion brought pursuant to the Fair Labor Standards Act’s ("FLSA") collective action provisions. 29 U.S.C. § 216(b). In contrast to Rule 23 class actions, collective actions are opt-in—not opt-out. As a result, the standards applicable to obtain collective action notice—requiring a showing that similarly situated people exist—is drastically more lenient than those applicable to Rule 23 class actions. Plaintiffs sued Defendants to recover unpaid overtime wages that were not paid in accordance with the FLSA. Plaintiffs specifically allege that Defendants paid Plaintiffs on a Case 6:16-cv-00312-RP-JCM Document 12 Filed 12/20/16 Page 2 of 13 commission-only basis, with no guaranteed minimum weekly amount, and that such pay scheme fails the "salary basis" test for purposes of determining whether these employees would be exempt from the overtime provisions of the FLSA. Plaintiffs have submitted sworn declarations from Plaintiff Whiteman and another management employee who worked for Defendants throughout the recoverable period concerning the payment scheme. Exhibits C (Whiteman Declaration) and Exhibit D (Brewster Declaration). The declarations corroborate that Defendants paid Plaintiffs on a commission-only basis with no guaranteed minimum amount of compensation. Id. To be exempt from the overtime provisions of the FLSA, an employee must be paid a salary of at $455 a week. To qualify as "salary" – the amount must be guaranteed. So long as "the employment arrangement... includes a guarantee of at least the minimum weekly-required amount paid on a salary basis," the employer may also provide the employee with "additional compensation," including commission on sales. 29 U.S.C. § 541.604(a); Edwards v. KB Home, No. 3:11-CV-240, 2015 WL 6965387, at *2 (S.D. Tex. Nov. 10, 2015). Therefore, when Defendants failed to pay Plaintiffs an overtime premium for hours over 40 in a workweek, Defendants violated the Fair Labor Standards Act. Id. The declarations establish that the members of the proposed group regularly worked over 40 hours a week and were not paid an overtime premium. The declarations further demonstrate that the members of the proposed group were paid on a commission-only basis, with no guarantee of any minimum amount of compensation at any time. Furthermore, the early evidence demonstrates the uniformity of the pay plan that applied to the proposed group. At this early stage in the case, and even without the benefit of notice, Early Opt-In Plaintiff Stephen Brewster has already self-selected as similarly situated and elected to join Plaintiff Whiteman this suit. However, individuals exist who are likely unaware of their suit or even their potential right to overtime compensation. Because Plaintiffs have shown that similarly Whiteman v. Wardlaw Consulting Services, Inc. et al./Motion for Notice 2 Case 6:16-cv-00312-RP-JCM Document 12 Filed 12/20/16 Page 3 of 13 situated people exist, Notice is warranted to provide Potential Plaintiffs with notice of this suit. A Notice to Potential Plaintiffs will allow a limited group of Defendants’ current and former employees to make an informed decision regarding whether or not to participate in this case. A proposed form of the Notice is attached to this motion as Exhibit A. The proposed Consent Form is attached as Exhibit B. Although Plaintiffs will establish Defendants’ FLSA violations at trial, the merits of the case are not at issue here. Plaintiffs have readily met the lenient burden applicable at this stage, making conditional certification and Notice appropriate.1 Because recovery for each Potential Plaintiff erodes daily, the Court should authorize Notice as soon as possible.2 II. FACTUAL BACKGROUND A. Plaintiffs Are Similarly Situated to Other Supervisory and/or Management Personnel. The declarations attached to this motion demonstrate that a group of similarly situated employees were subjected to the same improper pay scheme that failed to pay them for overtime work. Exhibit C (Whiteman Declaration) and Exhibit D (Brewster Declaration). The potential Plaintiffs are in supervisory and/or management positions within various departments of Defendants’ business operations. Id. While their higher level of responsibility with Wardlaw 1 See e.g., Rousseau v. Frederick’s Bistro, Ltd., 2010 U.S. Dist. LEXIS 34271, at *8-9 (W.D. Tex. Apr. 7, 2010) (citing to Bernal v. Vankar Enterps., Inc., No. SA-07-CA-695-XR, 2008 U.S. Dist. LEXIS 22814, 2008 WL 791963, at *3 (W.D. Tex. Mar. 24, 2008)); Oliver v. Aegis Communications Group, Inc., No. 3:08-cv-828, 2008 WL 7483891 (N.D. Tex. Oct. 30, 2008) (certifying companywide class of employees allegedly performing off-the-clock work in seven call centers in six states); Ericson v. Texas Apartment Locators, Inc. No. 3:06-cv-01431 (N.D. Tex. April 10, 2007) (Notice permitted in an off-the-clock case); Barnett v. Countrywide Credit Industries, Inc., No. 3:01-CV-1182-M, 2002 WL 1023161 (N.D. Tex. May 21, 2002) (certifying nationwide class of employees challenging their employer’s decision to classify them as exempt under the FLSA); 2 The FLSA statute of limitations runs from the date an individual opts into the case. Consequently, for former employees who are no longer being subjected to the illegal practice, every day without Notice is a day’s pay they lose forever. Plaintiffs therefore request an expedited determination of this Motion. Whiteman v. Wardlaw Consulting Services, Inc. et al./Motion for Notice 3 Case 6:16-cv-00312-RP-JCM Document 12 Filed 12/20/16 Page 4 of 13 explains why they were a part of this commission-only pay scheme, their actual job duties are irrelevant in this particular case for purposes of being similarly situated, as will be explained below. Defendants supply contract-based insurance adjusting services to insurance companies in various parts of the country. Exh. C & D. In this capacity, Plaintiffs and the potential plaintiffs were all subjected to job requirements imposed by Defendants that regularly required them to work well in excess of 40 hours a week. Id.3 Defendants failed to pay Whiteman, Brewster or any of the similarly situated supervisory and/or management personnel overtime pay, despite this regular overtime work. Id. During the claim period in this case, which runs from – at its earliest – August 2013 to the present, there have been approximately 20 current or former Wardlaw employees who were paid by this same commission-only scheme. Id. They were selected for this pay structure due to the fact that they are/were in supervisory and/or management positions within the company. Id. The Whiteman and Brewster Declarations substantiate that Plaintiffs were all subjected to the same pay scheme that forms the basis of Plaintiff’s Complaint under the FLSA. Id. B. The Pay Scheme The two current Plaintiffs and all of the potential opt-in plaintiffs were paid on a commission-only basis. However, what further joins them together is the fact that they were all paid an allocated percentage of the incoming receipts of Wardlaw Consulting Services, Inc. Id. Wardlaw would invoice its clients – insurance carriers – for its work on each carrier’s behalf. Id. The carrier would send payment on the invoice. Id. When the money would come in, Wardlaw would deduct certain expenses. Id. Then, with an allocated portion of the remainder, Wardlaw 3 All references to "Id." following a reference to both Exh. C and Exh. D intends to reference both exhibits, which contain similar information due to Whiteman and Brewster’s similar knowledge and awareness of the Wardlaw business operations, pay scheme and other employees subjected to the same pay scheme. Whiteman v. Wardlaw Consulting Services, Inc. et al./Motion for Notice 4 Case 6:16-cv-00312-RP-JCM Document 12 Filed 12/20/16 Page 5 of 13 would pay Whiteman, Brewster and all other supervisory and/or management employees who were on the commission-only structure a certain percentage of that set-aside money. Id. Wardlaw referred to the set-aside money as "the bucket," and all potential plaintiffs would be familiar with this terminology. Id. While they were chosen for this pay scheme due to their level of responsibility and duties, their job duties are otherwise irrelevant for purposes of determining their similarly situated status. They were all paid a percentage of "the bucket" – a commission – and none were guaranteed any minimum amount of compensation. Id. All they received was whatever they received as a consequence of that pay period’s incoming receipts. Id. C. Similarly Situated, Potential Opt-in Plaintiffs Exist Brewster spent 20 years with Wardlaw and ended his tenure as the Vice President of Claims Operations. Exh. C. His Consent to Join this lawsuit is attached as Exhibit E. Both he and Whiteman have direct knowledge that at any given time, approximately 15 employees of Wardlaw Consulting Services, Inc. were subject to "the bucket" pay scheme. Exh. C and Exh. D. Both estimate that over the course of the claim period, there are approximately 20 individuals who are current and former employees who were compensated solely through commissions paid out of "the bucket." Id. Plaintiffs contend that there are other current and former employees who likely are not aware of their rights under the FLSA in this respect but would be interested in participating if they were made aware of their potential claim. Plaintiffs have exceeded the lenient standard for conditional certification by demonstrating (1) the uniform pay scheme that violates the Fair Labor Standards Act, and (2) that similarly situated Potential Plaintiffs exist. III. REQUEST FOR CONDITIONAL CERTIFICATION AND § 216(b) NOTICE This Motion’s purpose is to seek conditional certification of and send supervised notice to the following Potential Plaintiffs: Supervisory and/or Management Employees who were employed by Wardlaw Whiteman v. Wardlaw Consulting Services, Inc. et al./Motion for Notice 5 Case 6:16-cv-00312-RP-JCM Document 12 Filed 12/20/16 Page 6 of 13 Consulting Services, Inc. at any time from December 2013 to the present and whose monetary compensation consisted of a commission paid from funds known as "the bucket." Plaintiffs have met the lenient standards for Notice Issuance to Potential Plaintiffs. A. Collective Actions Are Favored Under the Law and Authorize the Court to Issue Notice to the Potential Opt-in Plaintiffs. FLSA plaintiffs may bring an action on behalf of all "other similarly situated employees."4 The law favors collective actions because they benefit the judicial system by enabling the "efficient resolution in one proceeding of common issues of law and fact," and providing the chance to "lower individual costs to vindicate rights by the pooling of resources."5 Unlike a Rule 23 class action, Plaintiffs in an FLSA collective action must affirmatively opt-in to be covered by the suit.6 If an individual employee does not opt-in by filing a written consent, he or she will not be bound by the outcome—whether favorable or not—and may bring a subsequent private action.7 Because the substantial benefits of FLSA collective actions "depend on employees receiving accurate and timely Notice concerning the pendency of the collective action," the FLSA grants the Court authority to manage the process of joining such employees in the action, including the power to authorize Notice, and monitor preparation and distribution of the Notice.8 "Court authorization of Notice serves the legitimate goal of avoiding a multiplicity of duplicative 4 29 U.S.C. §216(b). 5 Hoffmann-LaRoche, Inc. v. Sperling, 493 U.S. 165, 170 (1989). 6 29 U.S.C. §216(b); Thiessen v. General Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001). 7 Equal Employment Opportunity Comm’n v. Pan Am World Airways, Inc, 897 F.2d 1499, 1508 n.11 (9th Cir. 1990). 8 Hoffmann-La Roche, 493 U.S. at 169-73 (1989) ("The broad remedial goal of the statute should be enforced to the full extent of its terms."). Whiteman v. Wardlaw Consulting Services, Inc. et al./Motion for Notice 6 Case 6:16-cv-00312-RP-JCM Document 12 Filed 12/20/16 Page 7 of 13 suits and setting cutoff date to expedite disposition of the action."9 The Court is empowered and encouraged to issue Notice to Potential Plaintiffs and should do so in this case. B. The Two-Stage Certification Process. This Court uses a two-stage approach to the certification issue.10 Under the two-stage approach, once the Court makes the preliminary determination that the Potential Plaintiffs are similarly situated, the case proceeds as a collective action throughout discovery.11 After conditional certification, discovery becomes relevant in regards to the merits of the case and the second step in the collective action procedure.12 At the second stage, the Court evaluates discovery-developed evidence to test the validity of its preliminary Notice stage decision.13 Allowing early Notice and full participation by opt-ins "assures that the full'similarly situated’ decision is informed, efficiently reached, and conclusive."14 Upon completion of the Notice and opt-in period, the Court will have the benefit of knowing the actual makeup of the collective action.15 Early Notice will help this Court manage the case by enabling it to "ascertain the contours of the action at the outset."16 C. Plaintiffs Are Entitled to Notice Based On a Minimal Showing That They Are Similarly Situated to Other Employees. 1. The Standard for Notice is a "Lenient" One. 9 Id. at 172; Reab v. Electronic Arts, Inc., 214 F.R.D. 623, 628 (D. Colo. 2002) (conditional certification for Notice purposes was appropriate where Plaintiffs had made "substantial allegations" and conditional certification would allow "significant economies" to be achieved). 10 See e.g. Cantu v. Milberger Landscaping, Inc. No. SA-13-CA-731, 2014 WL 1413500 (W.D. Tex. April 3, 2014) (Hudspeth, H.) (noting that the court utilized the two-step approach to conditionally certify the class and denying defendant’s motion to decertify the class). 11 Mooney, 54 F.3d at 1214 (5th Cir. 1995). 12 Id. 13 Id. 14 Sperling v. Hoffmann-LaRoche Inc., 118 F.R.D. 392, 406 (D. N.J.), aff’d, 862 F.2d 439 (3d Cir. 1988), aff’d, 493 U.S. 165 (1989). 15 Clarke v. Convergys Cust. Manag. Group, 370 F. Supp. 2d 601, 605 (S.D. Tex. 2005) (Notice informs the original parties and the court of the number and identity of persons desiring to participate in the suit). 16 Hoffman-La Roche, 493 U.S. at 172-73. Whiteman v. Wardlaw Consulting Services, Inc. et al./Motion for Notice 7 Case 6:16-cv-00312-RP-JCM Document 12 Filed 12/20/16 Page 8 of 13 Because the first step takes place prior to discovery completion, the standard for Notice "is a lenient one"17 that courts, including in this District, have routinely recognized and applied in certifying collective actions.18 Imposing a strict standard of proof at the Notice stage would unnecessarily hinder the development of collective actions and undermine the FLSA’s "broad remedial goals."19 Only at the second stage—occurring at the close of discovery—does a Court make a "factual determination" as to whether the class members are similarly situated.20 The first stage’s lenient standard "typically results in'conditional certification’ of a representative class," to which Notice is sent.21 2. Plaintiffs Need Only Make Substantial Allegations Supported by Sworn Statements at the Notice Stage. At the first stage of the two-stage approach, the Court determines whether named Plaintiff and potential plaintiffs are "similarly situated" based on allegations in the complaint supported by sworn statements.22 The record need only be "sufficiently developed... to allow 17 Mooney, 54 F.3d at 1214; See Bernal, 2008 U.S. Dist. LEXIS 22814, 2008 WL 791963, at *4 ("[t]he decision to conditionally certify a class at the Notice stage is lenient"). 18 See e.g. Ryan, 497 F. Supp. 2d 820; Aguilar, 2004 WL 2293842, at *1; Barnett, 2002 WL 1023161, at *2; Barrera v. MTC, Inc., 2011 U.S. Dist. LEXIS 20589, at *3 (W.D. Tex. Mar. 21, 2011). 19 Garner v. G.D. Searle, 802 F. Supp. 418, 422 (M.D. Ala. 1991); Sperling, 118 F.R.D. at 407 ("[N]otice to absent class members need not await a conclusive finding of'similar situations.’"). 20 Mooney, 54 F.3d at 1214; Barrera, 2011 U.S. Dist. LEXIS 20589, at *4; Rousseau, 2010 U.S. Dist. LEXIS 34271, at *9. 21 Mooney, 54 F.3d at 1214. 22 See, e.g., Bernal, 2008 WL 791963, at *4 (noting that "at least one" of the opt-in Plaintiffs submitted an affidavit supporting the allegations); Brown v. Money Tree Mortg. Inc., 222 F.R.D. 264, 680 (D. Kan. 2004) (two affidavits); Williams v. Sprint/United Mgmt Co., 222 F.R.D. 483, 487 (D. Kan. 2004) (allegations in complaint were "more than sufficient to support provisional certification"); Reab, 214 F.R.D. at 628 (allegations in complaint); Ballaris v Wacker Silttronic Corp., 2001 U.S. Dist. LEXIS 13354 at *3-5 (D. Ore. Aug. 24, 2001) (two affidavits); De Asencio v. Tyson Foods, Inc., 130 F. Supp. 2d 660, 663 (E.D. Pa. 2001) (four affidavits); Zhao v. Benihana, 2001 U.S. Dist. LEXIS 10678 at *12-*13 (S.D. N.Y. 2001) (one affidavit based on plaintiff’s "best knowledge"); Alba v. Madden Bolt Corporation, No. H-02-1503 (S.D. Tex. June 5, 2002) (J. Hoyt) (one affidavit sufficient); Loreas v. C&S Ranch, No. L-97-30 (S.D. Tex. May 16, 1997) (J. Kazen) (one affidavit sufficient). Whiteman v. Wardlaw Consulting Services, Inc. et al./Motion for Notice 8 Case 6:16-cv-00312-RP-JCM Document 12 Filed 12/20/16 Page 9 of 13 court-facilitated Notice" based upon "substantial allegations"23 or "some factual support."24 In the present case, the allegations of Plaintiff Whiteman’s Complaint have been substantiated by the sworn declarations of two individuals, demonstrating that around 20 current and former employees of Wardlaw Consulting Services, Inc. are similarly situated through a common pay scheme that violates the FLSA. Exh. C and Exh. D. Plaintiffs have made the "modest factual showing" necessary for the Court to issue Notice.25 3. Plaintiffs are "Similarly Situated" to Other Frontline Oilfield Workers. Plaintiffs are similarly situated to other supervisory and/or management employees whose compensation was paid as a percentage of funds from "the bucket." As stated in the Whiteman and Brewster declarations, these employees were not guaranteed any minimum compensation. Instead, Whiteman, Brewster and these 20 or so other employees were paid on a commission-only basis. And, Plaintiffs here routinely worked more than 40 hours per week without proper overtime pay. Texas federal courts have formulated the similarly situated analysis as requiring Plaintiffs to:... make a minimal showing that: (1) there is a reasonable basis for crediting the assertion that aggrieved individuals exist; (2) those aggrieved individuals are similarly situated to the Plaintiff in relevant respects given the claims and defenses asserted; and (3) those individuals want to opt in to the lawsuit.26 The "similarly situated" requirement of § 216(b) is more elastic and less stringent than the 23 Garner, 802 F. Supp. at 422; Sperling, 118 F.R.D. at 407; see also Church v. Consolidated Freightways, Inc., 137 F.R.D. 294 (N.D. Cal. 1991), 24 Belcher v. Shoney’s Inc., 927 F. Supp. 249, 251 (M.D. Tenn. 1996). 25 Realite v. Ark Restaurants Corp., 7 F. Supp. 2d 303, 306 (S.D.N.Y. 1998). 26 Maynor v. Dow Chemical, Inc., 2008 WL 2220394, at *6 (S.D. Tex., May 28, 2008) (referencing Prater v. Commerce Equities Mgmt. Co., 2007 WL 4146714, at *4 (S.D. Tex. Nov. 19, 2007); Simmons v. T-Mobile USA, Inc., No. H-06-1820, 2007 WL 210008, at *5 (S.D. Tex. Jan. 24, 2007)), Whiteman v. Wardlaw Consulting Services, Inc. et al./Motion for Notice 9 Case 6:16-cv-00312-RP-JCM Document 12 Filed 12/20/16 Page 10 of 13 requirements found in Rule 20 (joinder), Rule 42 (severance), or in Rule 23 (class actions).27 While evidence of a single decision, policy or plan will meet the similarly situated standard,28 a unified policy, plan, or scheme is not required to satisfy the more liberal "similarly situated" requirement of the FLSA.29 Accordingly, "[a] court may deny a Plaintiff’s right to proceed collectively only if the action arises from circumstances purely personal to the Plaintiff, and not from any generally applicable rule, policy, or practice."30 That is not the case here. Courts consider across-the-board decisions to treat a discrete category of employees as not eligible for overtime as sufficient to warrant conditional certification and Notice to all those performing the same or similar work.31 The holdings of these cases are consistent with the Supreme Court’s pronouncement that Notice may be authorized under § 216(b) of FLSA because "[t]he judicial system benefits by efficient resolution in one proceeding of common issues of law and fact arising from the same alleged discriminatory activity."32 Although not a statutory requirement, one of the factors some courts consider in Notice determination is whether or not similarly situated individuals exist who desire to opt-in and who should be given Notice of their right to do so.33 The fact that one individual has already elected to join the case—in addition to the named Plaintiff Whiteman—in what is a relatively small potential class, without the benefits of a Court-Supervised Notice, evidences this fact. Plaintiffs contend that the potential plaintiffs’ right to overtime pay is likely not obvious to such 27 Grayson, 79 F.3d at 1096. 28 Sperling, 118 F.R.D. at 407 29 See Sperling, 118 F.R.D. at 407; Grayson, 79 F.3d at 1096. 30 Donohue v. Francis Services, Inc., No. 04-170, 2004 WL 1161366 (E.D. La. May 24, 2004) (citations omitted). 31 Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1264 (11th Cir. 2008) ("There is nothing unfair about litigating a single corporate decision [to classify employees as exempt] in a single collective action…"); Patton v. Thompson Corporation, 364 F. Supp. 2d 263 (E.D.N.Y. 2005) (Notice granted because Plaintiff was classified as exempt and all other employees with the same job title were also classified as exempt). 32 Hoffmann-La Roche, 493 U.S. at 170. 33 See Dybach, 942 F.2d at 1567-68. Whiteman v. Wardlaw Consulting Services, Inc. et al./Motion for Notice 10 Case 6:16-cv-00312-RP-JCM Document 12 Filed 12/20/16 Page 11 of 13 individuals, but that if noticed, many would join this action to be fully compensated for their substantial work for Wardlaw. Because Plaintiffs have demonstrated that similarly situated individuals exist who desire to join the suit, Plaintiffs have well exceeded their burden to justify Notice to Potential Plaintiffs. IV. RELIEF SOUGHT: CONDITIONAL CERTIFICATION, ISSUANCE OF NOTICE TO POTENTIAL PLAINTIFFS, AND DISCLOSURE OF NAMES AND ADDRESSES To facilitate the Notice process, Plaintiffs seek supervised Notice to and Conditional Certification of the Potential Plaintiffs. Plaintiffs ask the Court approve the proposed Notice (Exhibit A) that is based on notices approved and issued in other cases. Plaintiffs have also submitted a proposed Consent to Join form to be submitted by those wishing to join this action (Exhibit B) and seek a ninety (90) day opt-in period from the date Notice is mailed. Plaintiffs also seek an Order: (1) requiring Defendants to disclose the names, last known addresses, e-mail addresses, and telephone numbers—in useable electronic form to reduce any delay in sending out notices—within seven (7) days from the entry of an Order; and (2) providing permission to send the attached proposed Notice and Consent Forms to the class members.34 Plaintiffs further request any other relief to which they are entitled to under the law. V. C ONCLUSION Plaintiffs have presented detailed allegations and sworn statements concerning their pay scheme with Defendants and their unpaid overtime hours that identify a pay scheme that violates the FLSA. Because Plaintiffs have met their burden of showing that similarly situated individuals 34 Beall v. Tyler Technologies, Inc., 2009 WL 3064689, at *1 (E.D. Tex. 2009) (Ward, J.) (court granted class Notice via email and later compelled the employer to produce all email addresses, both personal and work); see also Davis v. Westgate Planet Hollywood Las Vegas, LLC., 2009 WL 102735, at * 15 (D. Nev. Jan. 12, 2009) (court granted circulation of class Notice via both U.S. mail and email); Davis v. Westgate Planet Hollywood Las Vegas, LLC, 2009 WL 4019424, *3 (D. Nev. Nov. 19, 2009); Lewis v. Wells Fargo & Co., 669 F. Supp. 2d 1124, 1128-29 (N.D. Cal. 2009); Cranney v. Carriage Services, Inc., 2008 WL 608639, *5 (D. Nev. Feb. 29, 2008). Whiteman v. Wardlaw Consulting Services, Inc. et al./Motion for Notice 11 Case 6:16-cv-00312-RP-JCM Document 12 Filed 12/20/16 Page 12 of 13 exist that have not been notified about the present suit, the Court should enforce the collective action provisions of the FLSA and grant Plaintiffs’ Motion for Notice and Conditional Certification. Respectfully submitted, Kerry V. O’Brien Texas Bar No. 24038469 Board Certified in Labor & Employment Law by the TBLS 1011 Westlake Drive Austin, Texas 78746 email: ko@obrienlawpc.com phone: (512) 410-1960 fax: (512) 410-6171 COUNSEL FOR PLAINTIFFS J. DEREK BRAZIEL Texas Bar No. 00793380 J. FORESTER Texas Bar No. 24087532 LEE & BRAZIEL, L.L.P. 1801 N. Lamar Street, Suite 325 Dallas, Texas 75202 (214) 749-1400 phone (214) 749-1010 fax www.overtimelawyer.com CO-COUNSEL FOR PLAINTIFFS Whiteman v. Wardlaw Consulting Services, Inc. et al./Motion for Notice 12 Case 6:16-cv-00312-RP-JCM Document 12 Filed 12/20/16 Page 13 of 13 CERTIFICATE OF SERVICE I hereby certify that on December 20, 2016, I electronically filed the foregoing document with the Clerk of Court using the CM/ECF system, which will send notification of such filing to all registered counsel in this matter, including: Philip E. McCleery David M. Mathews 510 N. Valley Mills Drive, Suite 500 Waco, TX 76710 254.772.8022 Telephone 254.772.9297 Facsimile ATTORNEYS FOR DEFENDANTS/s/Kerry V. O’Brien Kerry V. O’Brien Whiteman v. Wardlaw Consulting Services, Inc. et al./Motion for Notice 13