Encinas v. J.J. Drywall Corporation

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

)

FELIX ENCINAS, et al., )

)

Plaintiffs, )

)

v. ) Civil Action No. 08-1156 (RWR)

)

J.J. DRYWALL CORPORATION, )

et al., )

)

Defendants. )

______________________________)

MEMORANDUM OPINION AND ORDER

Plaintiffs Gabriel and Felix Encinas and Silvano Carbajal

bring claims on their own behalf and on behalf of all others

similarly situated against defendants J.J. Drywall Corporation

and Jose Luis Jimenez under the Fair Labor Standards Act

(“FLSA”), codified at 29 U.S.C. § 201 et seq., and various

District of Columbia and Maryland statutes to recover unpaid

overtime and other wages. The plaintiffs have filed unopposed

motions to conditionally certify the collective class challenging

the denial of overtime compensation under the FLSA and to certify

sub-classes of plaintiffs asserting claims under District of

Columbia and Maryland Law under Rule 23 of the Federal Rules of

Civil Procedure. Because the plaintiffs have made the modest

factual showing necessary for conditional certification under the

FLSA and satisfied the requirements of Rule 23 to certify the

state sub-classes, their unopposed motions will be granted.

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BACKGROUND

Defendant J.J. Drywall, owned by pro se defendant Jose Luis

Jimenez, installs drywall in commercial construction sites in

Washington, D.C. and Maryland. (Compl. ¶¶ 7, 9, 12.) J.J.

Drywall employed plaintiffs Gabriel and Felix Encinas and Silvano

Carbajal as drywall mechanics. (Id. ¶¶ 4-6.) Plaintiffs allege

in their complaint that Gabriel and Felix Encinas worked more

than forty hours in a workweek but did not receive time and one-

half overtime compensation for those hours. (Id. ¶ 19.)

Plaintiffs further allege that J.J. Drywall has a policy of not

paying its drywall workers for overtime hours worked and of

deducting and retaining ten percent of its drywall employees

gross wages without “legal authorization or justification for the

deductions.” (Id. ¶¶ 20-21.)

Plaintiffs move to conditionally certify a collective action

under the FLSA for all similarly situated employees who did not

receive time and one-half compensation for overtime, and to

certify Washington, D.C. and Maryland sub-classes under Federal

Rule of Civil Procedure 23 for all similarly situated employees

bringing claims of unpaid wages under D.C. and Maryland law.

Plaintiffs have also moved for approval of a proposed notice for

collective action class members and for members of each sub-

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class, and for discovery of the names, last known addresses, and

telephone numbers of potential class members.1

DISCUSSION

I. FLSA CONDITIONAL CERTIFICATION

The FLSA provides that “no employer shall employ any of his

employees . . . for a workweek longer than forty hours unless

such employee receives compensation for his employment in excess

of the hours above specified at a rate not less than one and one-

half times the regular rate at which he is employed.” 29 U.S.C.

§ 207(a)(1). If an employer violates this section, “any one or

more employees for and in behalf of himself or themselves and

other employees similarly situated” may bring a cause of action.

29 U.S.C. § 216(b). Such a collective action is not subject to

the class certification standards –– numerosity, commonality,

typicality, and adequacy of representation –– under Rule 23.

Castillo v. P & R Enterprises, Inc., 517 F. Supp. 2d 440, 444

(D.D.C. 2007). “Instead, a collective action has only two

threshold requirements: the plaintiff[s] must show that [they

are] similarly situated to the other members of the proposed

class, and those other members must ‘opt in’ to the proposed

class.” Hunter v. Sprint Corp., 346 F. Supp. 2d 113, 117 (D.D.C.

2004).

1

Jimenez does not oppose either motion. J.J. Drywall has

not entered an appearance through counsel, as a corporation must

in order to participate in the suit.

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While the D.C. Circuit has yet to articulate the procedure

for certifying a class under the FLSA, courts in this district

typically engage in a two-step process. First, “plaintiffs must

make 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.’” Castillo, 517 F. Supp.

2d at 445 (quoting Chase v. AIMCO Props., 374 F. Supp. 2d 196,

200 (D.D.C. 2005). Such a showing, as an initial matter,

satisfies the FLSA requirement that putative class members be

similarly situated to the plaintiffs, id., and is “ordinarily

based mostly on the parties’ pleadings and affidavits.” Chase,

374 F. Supp. 2d at 200; see also McKinney v. United Stor-All

Ctrs., Inc., 585 F. Supp. 2d 6, 8 (D.D.C. 2008) (noting that

“[t]his showing may be made through pleadings and affidavits that

demonstrate that ‘the putative class members were together the

victims of a single decision, policy or plan’ that violated the

law” (quoting Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214 n.8

(5th Cir. 1995))). Second, defendants may move at the close of

discovery to decertify the conditional class if the record

establishes that the plaintiffs are not, in fact, similarly

situated. Castillo, 517 F. Supp. 2d at 445.

Because conditional certification is not binding and is

merely meant to facilitate providing notice to potential class

members so that they may choose to opt in to the collective

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action, “[t]he court employs a lenient standard” in making such a

determination. McKinney, 585 F. Supp. 2d at 8. While the FLSA

does not define “similarly situated[,]” id., courts have

considered three factors that bear on the commonality of the

claims: “(1) whether [putative class members] all worked in the

same corporate department, division and location; (2) whether

they all advanced similar claims; and (3) whether they sought

substantially the same form of relief.” Hunter, 346 F. Supp. 2d

at 119 (quoting Lawrence v. City of Phila., No. 03-CV-4009, 2004

WL 945139, at *1 (E.D. Pa. Apr. 29, 2004)). In Castillo, the

court conditionally certified a class even though some putative

class members did not have identical job titles or duties and

worked in different locations. It found these distinctions

immaterial in light of the substantive similarity of the putative

class members’ job responsibilities, their shared classification

as non-exempt for purposes of the FLSA, and the allegation that

the employer subjected all of its workers to a uniform payroll

policy. 517 F. Supp. 2d at 446-48.

Here, the putative class members are similarly situated to

the plaintiffs. As in Castillo, the plaintiffs allege that “the

duties and responsibilities of the jobs held by members of the

proposed Collective Class were the same as or substantially

similar to the duties and responsibilities of the jobs held by

Plaintiffs Gabriel Encinas and Felix Encinas.” (Compl. ¶ 69.)

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The named plaintiffs worked for J.J. Drywall installing drywall

and insulation at various construction sites (see Pls.’ Mem. of

P. & A. in Supp. of Mot. for Conditional Certification of

Collective Class (“Pls.’ § 216(b) Mem.”), Gabriel Encinas Decl.

¶¶ 11, 16; Compl. ¶ 14), and the collective class members worked

as “drywall finisher[s], drywall mechanics[s], carpenter[s],

and/or mechanic[s], who perform work similar to the work

performed by employees in those classifications[.]” (Compl.

¶ 68.) J.J. Drywall classified the named plaintiffs and all

putative class members as exempt employees under the FLSA. (Id.

¶ 17.) Additionally, the plaintiffs have alleged that J.J.

Drywall has “a company policy of not paying its employees for

overtime hours worked” (id. ¶ 20), and the plaintiffs’ and

putative class members’ FLSA claims stem from this policy. These

similarities are sufficient to overcome any differences in job

titles or work locations between the plaintiffs and putative

class members, and the class will be conditionally certified.

“The scope of a collective action for overtime pay is

limited, however, in that putative class members must

affirmatively opt in to the action in order to become part of the

lawsuit.” Cryer v. Intersolutions, Inc., Civil Action No. 06-

2032 (EGS), 2007 WL 1053214, at *1 (D.D.C. Apr. 7, 2007). To opt

in to the class, a plaintiff must give “his consent in

writing[,]” and such consent must be filed in the court in which

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the suit is brought. 29 U.S.C. § 216(b). A court may facilitate

notice of a collective action, informing putative members of the

class about the suit and the requirement to opt in to the

litigation, so long as it “take[s] care to avoid even the

appearance of judicial endorsement of the merits of the action.”

Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 174 (1989).

Ninety days is a reasonable period for putative class members to

respond to the notice. Cryer, 2007 WL 1053214, at *3. Here,

plaintiffs have filed a proposed notice, to be posted “at all of

J.J. Drywall Corporation’s job sites, in the same areas in which

it is required to post government-required notices.” (Pls.’

§ 216(b) Mem. at 13.) The proposed notice is limited to the FLSA

overtime claim and makes abundantly clear that the court has not

yet taken a position on the merits of the claim. (See id., Ex. A

at 2, 4.) Thus, plaintiffs’ proposed notice will be approved to

be posted for a period of ninety days from the date of this

Order.

Plaintiffs also move for an order directing defendants to

supply the names, last known addresses, and telephone numbers of

all employees in the putative class. (Id. at 13.) A district

court may order a defendant to produce the names and last known

addresses of putative FLSA collective action class members in

order to facilitate providing these individuals with notice. See

Hoffmann-La Roche, 493 U.S. at 170 (finding that “[t]he District

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Court was correct to permit discovery of the names and addresses

of the discharged employees” to facilitate notice of collective

action under 29 U.S.C. § 216(b)); Hunter, 346 F. Supp. 2d at 121

(ordering production of names and addresses). However, some

courts have hesitated to order defendants to produce the

telephone numbers of putative class members, reasoning that such

information is “inherently private[.]” See, e.g., Fengler v.

Crouse Health Found., Inc., 595 F. Supp. 2d 189, 198 (N.D.N.Y.

2009); Houston v. URS Corp., 591 F. Supp. 2d 827, 836 (E.D. Va.

2008) (denying plaintiffs’ request for phone numbers). Because

plaintiffs have not specifically justified their need for access

to putative class members’ phone numbers, the defendants will be

ordered to produce only the names and last known addresses of

putative class members.

II. RULE 23 CERTIFICATION

The plaintiffs also move to certify a Washington, D.C. sub-

class and a Maryland sub-class under Rule 23. These sub-classes

would include all hourly-paid or piece-work drywall finishers,

drywall mechanics, carpenters, or mechanics who were not paid for

all hours worked or had ten percent deducted from their gross

wages, and who were employed by J.J. Drywall in Washington, D.C.

or Maryland between July 1, 2005 and the date of final

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disposition of this action.2 (Pls.’ Mem. of P. & A. in Supp. of

Pls.’ Mot. for Order Certifying Classes and Appointing Class

Counsel Under Rule 23 (“Pls.’ Rule 23 Mem.”) at 8-9.) A party

moving to certify a class under Rule 23 bears the burden of

establishing that the suit satisfies the requirements of the

rule.3 Lindsay v. Gov’t Employees Ins. Co., 251 F.R.D. 51, 54

(D.D.C. 2008) (citing Amchem Prods., Inc. v. Windsor, 521 U.S.

591, 614 (1997)). First, under Rule 23(a), the moving party must

show that

(1) the class is so numerous that joinder of all

members is impracticable; (2) there are questions of

law or fact common to the class; (3) the claims or

defenses of the representative parties are typical of

the claims or defenses of the class; and (4) the

representative parties will fairly and adequately

protect the interests of the class.

Fed. R. Civ. P. 23(a). “Failure to adequately demonstrate any of

the four [Rule 23(a) requirements] is fatal to class

certification.” Garcia v. Johanns, 444 F.3d 625, 631 (D.C. Cir.

2006). Second, the party must show that the class action falls

2

Although the putative class members allege claims under

state law, plaintiffs’ FLSA claims arise under federal law, and

there is supplemental jurisdiction over the state law claims

under 28 U.S.C. § 1367(a).

3

“While the Local Civil Rules generally permit the Court to

treat unopposed motions as conceded, the Federal Rules of Civil

Procedure contemplate that the Court must find that the

requirements of Rule 23 are satisfied before certifying a class.”

Barnes v. District of Columbia, 242 F.R.D. 113, 120 (D.D.C. 2007)

(internal citation omitted). The merits of the certification

motion, therefore, will be evaluated even though defendant

Jimenez does not oppose the motion.

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within one of the three types of class actions identified in Rule

23(b). Lindsay, 251 F.R.D. at 54.

A. Rule 23(a) requirements

1. Numerosity

“Rule 23(a)(1) permits maintenance of a class action if ‘the

class is so numerous that joinder of all members is

impracticable.’” Taylor v. D.C. Water & Sewer Auth., 241 F.R.D.

33, 37 (D.D.C. 2007) (quoting Fed. R. Civ. P. 23(a)(1)). While a

class of at least forty members is sufficiently numerous to

satisfy this requirement presumptively, “[t]here is no specific

threshold that must be surpassed[.]” Id. Instead, a court must

examine the particular facts before it, Gen. Tel. Co. of Nw.,

Inc. v. EEOC, 446 U.S. 318, 330 (1980), including “geographic

dispersion of class members[.]” Robidoux v. Celani, 987 F.2d

931, 936 (2d Cir. 1993).

Plaintiffs claim that there are at least thirty-five members

in the Washington, D.C. sub-class and at least thirty members in

the Maryland sub-class. (Pls.’ Rule 23 Mem. at 9, 11.) The

declaration of plaintiff Gabriel Encinas states that there were

at least twenty similarly situated employees at one Washington

job site at which he worked and fifteen similarly situated

employees at another Washington job site at which he worked.

(Id., Gabriel Encinas Decl. ¶¶ 13, 18.) However, the declaration

of Miguel Linares confirms only that there were fifteen other

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similarly situated employees at one Maryland job site. (Id.,

Miguel Linares Decl. ¶ 16.) Even though both sub-classes fall

short of forty confirmed members, the plaintiffs still have

satisfied their required showing of numerosity. First, because

plaintiffs allege a company policy of deducting ten percent of

gross wages from its workers at all job sites, the number of

class members is potentially much greater than forty for each

sub-class, since the declarations cover only three of J.J.

Drywall’s many work sites. Second, because “the recent downturn

in the construction sector has made construction-related work,

including drywall installation, scarce[,] . . . other employees

have traveled hundreds of miles in search of work.” (Id.,

Gabriel Encinas Decl. ¶ 20.) Such geographic dispersion of

potential plaintiffs also makes joinder impracticable because it

will be difficult for individuals who no longer reside in or

around D.C. to take on the responsibilities of prosecuting their

cases in this court.

2. Commonality

“Commonality requires that the plaintiff raise claims which

rest on ‘questions of law or fact common to the class.’” Taylor,

241 F.R.D. at 37 (quoting Fed. R. Civ. P. 23(a)(2)). However,

“factual variations among the class members will not defeat the

commonality requirement, so long as a single aspect or feature of

the claim is common to all proposed class members.” Bynum v.

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District of Columbia (“Bynum II”), 217 F.R.D. 43, 46 (D.D.C.

2003). Here, the challenged activity is the same for the

plaintiffs and all members of the two sub-classes: J.J. Drywall’s

alleged policy of withholding ten percent of its drywall

employees’ gross wages. This satisfies the commonality

requirement.

3. Typicality

“Typicality requires that the claims of the representative

be typical of those of the class.” Taylor, 241 F.R.D. at 44

(citing Fed. R. Civ. P. 23(a)(3)). This inquiry overlaps with

the commonality inquiry, as each seeks to determine the

practicality of proceeding with a class action and the extent to

which the plaintiffs will protect the interests of absent class

members. Id. A plaintiff’s claims can be typical of those of

the class even if there is some factual variation between them.

Bynum v. District of Columbia (“Bynum I”), 214 F.R.D. 27, 34

(D.D.C. 2003). At bottom, a class representative’s claims are

typical of those of the class if “the named plaintiffs’ injuries

arise from the same course of conduct that gives rise to the

other class members’ claims.” Id. at 35. The claims of

plaintiffs Gabriel and Felix Encinas are typical of the claims of

members of the D.C. sub-class, and the claims of plaintiff

Silvano Carbajal are typical of the claims of the Maryland sub-

class because they all arise from the same alleged course of

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conduct: J.J. Drywall’s policy of retaining ten percent of its

drywall employees’ gross wages.

4. Adequacy of representation

“The fourth and final requirement of Rule 23(a) requires

that the court determine whether the proposed representatives can

adequately represent the interests of the class.” Taylor, 241

F.R.D. at 45. This requirement is satisfied upon a showing that

1) there is no conflict of interest between the proposed class

representative and other members of the class and 2) the proposed

class representative “will vigorously prosecute the interests of

the class through qualified counsel.” Lindsay, 251 F.R.D. at 55.

When determining whether potential class counsel is qualified, a

court considers

(i) the work counsel has done in identifying or

investigating potential claims in the action; (ii)

counsel’s experience in handling class actions, other

complex litigation, and the types of claims asserted in

the action; (iii) counsel’s knowledge of the applicable

law; and (iv) the resources that counsel will commit to

representing the class[.]”

Fed. R. Civ. P. 23(g)(1)(A).

The plaintiffs have shown that they will adequately

represent the class. Nothing in the record suggests that there

is any conflict between the class representatives and members of

the sub-classes. Plaintiffs also have retained qualified class

counsel. Counsel have already committed substantial time and

resources to identifying and investigating potential claims in

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the action. (See id., Brian Quinn Decl. ¶ 6, Charles Gilligan

Decl. ¶ 6.) The firms have experience in handling class actions

and labor litigation, providing them expertise in the applicable

area of law. (Id., Brian Quinn Decl. ¶¶ 4-5, Charles Gilligan

Decl. ¶¶ 4-5.) Finally, counsel have sufficient resources to

devote to representing the class. (Id., Brian Quinn Decl. ¶¶ 6-

8, Charles Gilligan Decl. ¶¶ 6-8.) The plaintiffs therefore have

satisfied all requirements under Rule 23(a).

B. Rule 23(b)

The plaintiffs assert that the class action may be

maintained under either Rule 23(b)(1)(A) or Rule 23(b)(3).

(Pls.’ Rule 23 Mem. at 16-17.) Rule 23(b)(1)(A) provides for

certifying a class when “prosecuting separate actions by . . .

individual class members would create a risk of . . .

inconsistent or varying adjudications with respect to individual

class members that would establish incompatible standards of

conduct for the party opposing the class[.]” Plaintiffs argue

that individual lawsuits would create the risk that defendants

would have to comply with inconsistent judgments. (Pls.’ Rule 23

Mem. at 17.) However, the complaint seeks monetary damages as

the primary form of relief, and a judgment that defendants are

liable to a particular plaintiff for damages is not necessarily

inconsistent with a judgment that the defendant is not liable to

another plaintiff. See Harrington v. City of Albuquerque, 222

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F.R.D. 505, 516 (D.N.M. 2004) (“Certification pursuant to Rule

23(b)(1)(A) is generally not appropriate in cases in which the

primary relief sought is monetary damages.”); Garcia v. Sun Pac.

Farming Coop., No. CV F 06-0871 LJO TAG, 2008 WL 2073979, at *5

(E.D. Cal. May 14, 2008) (noting that “certification of wage and

hour cases are not appropriate under Rule 23(b)(1)”). Certifying

the class action under Rule 23(b)(1)(A), then, may not be

appropriate.

A court may certify a class under Rule 23(b)(3) if “the

court finds that the questions of law or fact common to class

members predominate over any questions affecting only individual

members, and that a class action is superior to other available

methods for fairly and efficiently adjudicating the controversy.”

Fed. R. Civ. P. 23(b)(3). Relevant to this determination are 1)

the class members’ interests in individually controlling the

prosecution of their actions, 2) the extent and nature of any

litigation concerning the controversy already begun by class

members, 3) the desirability or undesirability of concentrating

litigation of the claims in a single forum, and 4) the likely

difficulties in managing the class action. Id.

1. Predominance

Whether “common factual and legal issues predominate over

any such issues that affect only individual class members[] is

related to the commonality requirement of Rule 23(a).” Bynum II,

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217 F.R.D. at 49. If the questions of law and fact identified as

common to the named plaintiffs and members of the class

predominate over any non-common issues, the requirement is

satisfied. Id. Here, the common issues of whether J.J. Drywall

maintained a policy of retaining ten percent of its drywall

workers’ gross wages and whether that practice violates D.C. or

Maryland law predominate over any issues that may affect

individual class members. All members of each sub-class appear

to have identical legal claims, and the only apparent non-common

factual issues involve determining at which job sites and for how

many hours each member of the class worked.

2. Superiority

“Rule 23(b)(3) favors class actions where common questions

of law or fact permit the court to ‘consolidate otherwise

identical actions into a single efficient unit.’” Bynum I, 214

F.R.D. at 40 (quoting Wells v. Allstate Ins. Co., 210 F.R.D. 1,

12 (D.D.C. 2002)). Several of the Rule 23(b)(3) factors weigh in

favor of consolidating the class members’ claims into a single

action. First, construction-related work has become more scarce

during the current economic downturn, and former J.J. Drywall

employees have dispersed geographically in search of other work.

(Pls.’ Rule 23 Mem., Gabriel Encinas Decl. ¶ 20.) Accordingly,

many class members likely have no interest in prosecuting their

actions individually, which would require sacrificing time that

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otherwise could be spent working or pursuing employment

opportunities. Second, the plaintiffs assert on information and

belief that “there is no current litigation concerning the

instant controversy by class members,” in part because “many are

non-English speakers, and are unfamiliar with the U.S. court

system and may be disinclined to individually engage in such a

system with which they are unfamiliar.” (Pls.’ Rule 23 Mem. at

19.) Finally, the common issues of law and fact predominate over

individual issues to such a great extent that there does not

appear to be any likely difficulty in managing the class action.

Thus, the sub-classes will be certified under Rule 23(b)(3).4

C. Notice

Once a court certifies a Rule 23(b)(3) class, “the court

must direct to class members the best notice that is practicable

under the circumstances, including individual notice to all

members who can be identified through reasonable effort.” Fed.

R. Civ. P. 23(c)(2)(B). Such notice

4

There is no conflict between conditionally certifying the

FLSA claims as a collective action under 29 U.S.C. § 216(b) and

certifying the state law claims as a class action under Rule 23,

even though class members must opt in to the former action and

may opt out of the latter. See Lindsay, 251 F.R.D. at 57

(surveying cases where plaintiffs sought to certify both FLSA and

state law claims and concluding that permitting state law claims

“to proceed as Rule 23(b)(3) class actions, along with FLSA

collective actions, is a superior method for adjudicating

plaintiffs’ claims” in situations where “plaintiffs’ state law

claims are based on the same facts as their federal law claims”

(internal quotation marks omitted)).

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must clearly and concisely state in plain, easily

understood language: (i) the nature of the action; (ii)

the definition of the class certified; (iii) the class

claims, issues, or defenses; (iv) that a class member

may enter an appearance through an attorney if the

member so desires; (v) that the court will exclude from

the class any member who requests exclusion; (vi) the

time and manner for requesting exclusion; and (vii) the

binding effect of a class judgment on members under

Rule 23(c)(3).

Id. The plaintiffs have submitted a proposed notice for each

sub-class that satisfies all requirements of Rule 23(c)(2) (see

Pls.’ Rule 23 Mem., Ex. 1, Ex. 2), and the notices will be

approved. To ensure that class members whose contact information

has changed also receive notice, the defendants will be ordered

to post the notice for each sub-class at J.J. Drywall’s work

places and job sites as well.

The plaintiffs also move for defendants to produce the

names, last known mailing addresses, and telephone numbers of all

potential members of both sub-classes to facilitate providing

them with notice. (Pls.’ Rule 23 Mem. at 20.) A court may order

a defendant to cooperate “in identifying the class members to

whom notice must be sent” under Rule 23(d). Oppenheimer Fund,

Inc. v. Sanders, 437 U.S. 340, 355 (1978). Just as with the

collective action, however, plaintiffs have not justified a

special need for disclosure of class members’ telephone numbers

to facilitate providing them with notice of the suit.

Accordingly, defendants will be ordered to produce only the names

and last known addresses of class members.

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The plaintiffs request that the defendants produce

information for all “non-exempt employees in their employ since

July 1, 2005.” (Pls.’ Rule 23 Mem. at 20.) However, the

plaintiffs’ complaint alleges that J.J. Drywall “classified or

treated” the plaintiffs and “all similarly situated employees as

exempt employees under FLSA and/or the D.C. Minimum Wage Revision

Act.” (Compl. ¶ 17 (internal citations omitted) (emphasis

added).) To avoid any confusion, defendants will be ordered to

produce the same names and addresses under Rule 23(d) as they

will produce under 29 U.S.C. § 216(b), namely all workers

employed as drywall finishers, drywall mechanics, carpenters,

mechanics, or in similar jobs, performing drywall installation

and finishing work at construction job sites in Washington, D.C.

or Maryland at any time since July 1, 2005.

CONCLUSION AND ORDER

The plaintiffs have made the modest factual showing

necessary for conditional certification under the FLSA and

satisfied the requirements of Rule 23 to certify the state sub-

classes. Accordingly, it is hereby

ORDERED that plaintiffs’ motion [20] for conditional

certification of a collective class, approval of notice to

potential plaintiff employees, and court-ordered discovery and

posting of notice be, and hereby is, GRANTED. The collective

class is conditionally certified as all individuals who are or

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have been employed by J.J. Drywall Corporation as hourly-paid or

piece-work employees and employed as drywall finishers, drywall

mechanics, carpenters, or mechanics, who perform work similar to

the work performed by employees in those classifications, and who

worked more than forty hours during any given work week between

July 1, 2005 and the date of final disposition of this action.

The proposed notice to the collective class is approved.

Defendants shall provide to plaintiffs’ counsel the names and

last known addresses of all workers employed as drywall

finishers, drywall mechanics, carpenters, or mechanics, or in

similar jobs, performing drywall installation and finishing work

at construction job sites at any time since July 1, 2005. For a

period of ninety days from the date of this Order, defendants

shall post the approved notice at all of their workplaces and job

sites in such a way as to reasonably assure that prospective

class members may see it in the ordinary course of performing

their duties. It is further

ORDERED that plaintiffs’ motion [19] to certify classes and

appoint class counsel under Rule 23 of the Federal Rules of Civil

procedure and to approve proposed notices be, and hereby is,

GRANTED. The Washington, D.C. sub-class is certified as all

individuals who are or have been employed by J.J. Drywall

Corporation in Washington, D.C. as hourly-paid or piece-work

employees and employed as drywall finishers, drywall mechanics,

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carpenters, or mechanics, who perform work similar to the work

performed by employees in those classifications, and who were not

paid for all hours worked or had ten percent deducted from their

gross wages between July 1, 2005 and the date of final

disposition of this action. The Maryland sub-class is certified

as all individuals who are or have been employed by J.J. Drywall

Corporation in Maryland as hourly-paid or piece-work employees

and employed as drywall finishers, drywall mechanics, carpenters,

or mechanics, who perform work similar to the work performed by

employees in those classifications, and who were not paid for all

hours worked or had ten percent deducted from their gross wages

between July 1, 2005 and the date of final disposition of this

action. DeCarlo, Connor & Shanely, P.C., and O’Donoghue &

O’Donoghue are appointed as class counsel. Plaintiffs’ proposed

notices to Washington, D.C. and Maryland sub-class members are

approved and class members shall have until June 21, 2010 to opt

out of their respective sub-classes. Defendants shall provide to

plaintiffs’ counsel the names and last known addresses of all

workers employed as drywall finishers, drywall mechanics,

carpenters, or mechanics, or in similar jobs, performing drywall

installation and finishing work at construction job sites in

Washington, D.C. and Maryland at any time since July 1, 2005.

For a period of ninety days from the date of this Order,

defendants shall post the approved notices at all of their

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workplaces and job sites in such a way as to reasonably assure

that prospective class members may see it in the ordinary course

of performing their duties.

SIGNED this 8th day of March, 2010.

__________/s/_______________

RICHARD W. ROBERTS

United States District Judge