AMENDED MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Plaintiffs' Motion for Final Certification of Collective Action and for Partial Summary Judgment as to Liability. (DN 41.) Defendant has filed a response, (DN 42), and Plaintiffs have replied. (DN 45.) Also pending before the Court is Defendant's Motion to Compel Discovery Responses, (DN 39), to which Plaintiffs have responded. (DN 40.) These matters are now ripe for adjudication. For the following reasons, Plaintiffs' Motion for Final Certification of Collective Action is GRANTED IN PART and DENIED IN PART, Plaintiffs' Motion for Partial Summary Judgment as to Liability is DENIED, and Defendant's Motion to Compel is DENIED as moot.
Plaintiff Michael Hathaway ("Plaintiff" or "Hathaway") filed this FLSA collective action pursuant to 29 U.S.C. § 216(b) on behalf of himself and all individuals employed by Defendant Shawn Jones Masonry ("Defendant"). Plaintiff worked for Defendant as a laborer from July 2008 to May 2011. Plaintiff and other laborers performed various jobs to assist brick masons at construction sites such as assembling and disassembling scaffolds, supplying materials to masons, helping to operate a grout pump, and cleaning floors. Plaintiff was paid an hourly wage for his work and was not an exempt employee. In his complaint, Plaintiff contends that Defendant violated §§ 207(a)(1) and 206(a) of the FLSA by failing to compensate laborers for non-commute travel time and other work performed after their work day had commenced.
According to Plaintiff, Defendant required him and the other laborers to arrive at the work facility in Murray, Kentucky ("Murray Facility") to prepare and load equipment onto a company truck before traveling to a designated job site for the day.*fn1 Upon arriving at the job site, if conditions were suitable for work, a foreman declared that the work day had begun. If the weather conditions were not suitable for work upon arriving at the work site, the employees would not be paid.*fn2 At the end of an eight-hour day, or when the conditions became unsuitable for work, a foreman would declare the work day over. Plaintiff contends, and Defendant admits, that he and the other laborers were only compensated for the hours recorded by the foreman while they actively worked at a job site. According to Plaintiff, after the foreman declared the workday over, he and the other laborers were required to load the equipment back on the company truck and then return to the Murray Facility before returning home for the day. Defendant denies this, contending that all clean-up work was done on the clock.
The Court conditionally certified Hathaway's claims as a FLSA collective action. See Hathaway v. Shawn Jones Masonry, No. 5:11-CV-121, 2012 WL 1252569, *2-4 (W.D. Ky. Apr. 13, 2012). Thereafter, three individuals joined this lawsuit and participated in the discovery process.*fn3 One goal of this discovery was to determine whether the opt-in plaintiffs were "similarly situated" to Hathaway. If the opt-in plaintiffs are not similarly situated, this case may not proceed collectively. Upon completion of discovery, Plaintiffs have moved the Court to grant final certification of this matter as a collective action. Plaintiffs further move for partial summary judgment as to liability, and contend this matter need only proceed to trial on the issue of damages.
As a preliminary matter, Defendant has filed a Motion to Compel opt-in Plaintiffs Paul Pettis, Richard Edmond, and Patrick Giordano to answer his Interrogatories and Requests for Production of Documents. To date, these individuals have failed to respond to their counsel's requests to provide Defendant with responsive information. Because these individuals have failed to participate in discovery and there is no information from which to determine if they are similarly situated to Plaintiff Hathaway, the Court finds it appropriate to DISMISS these individuals WITHOUT PREJUDICE. In light of this dismissal, the Court also DENIES Defendant's Motion to Compel as MOOT.
The Court now moves to the issue of final certification. An employee alleging violations of the Fair Labor Standards Act may bring suit against his employer on "behalf of himself . . . and other employees similarly situated." 29 U.S.C. § 216(b). A FLSA action on behalf of "similarly situated" employees is referred to as a "collective action." A FLSA collective action differs from a class action brought under Federal Rule of Civil Procedure 23. See Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006). "Unlike class actions under Fed. R. Civ. P. 23, collective actions under FLSA require putative class members to opt into the class." O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 583 (6th Cir. 2009). Furthermore, the standard for certifying a collective action is less stringent than that required for a class action. Id. at 584. To certify a class action under Rule 23, the class representative must show that "issues subject to generalized proof and applicable to the class as a whole predominate over those issues that are subject to only individualized proof." Randleman v. Fid. Nat'l Title Ins. Co., 656 F.3d 347, 352-53 (6th Cir. 2011) (emphasis added). There is no "predominance" requirement for a FLSA collective action, and "opt-in plaintiffs only need to be 'similarly situated.'" O'Brien, 575 F.3d at 584.
In determining whether opt-in plaintiffs are similarly situated, the majority of district courts follow a two-step certification process. First, like the Court here, they conditionally certify the collective action after minimal discovery so that the lead plaintiff can issue notice to the putative class, allowing potential class members to opt into the action if desired. See Hathaway v. Shawn Jones Masonry, No. 5:11-CV-121, 2012 WL 1252569, *2-4 (W.D. Ky. Apr. 13, 2012). Second, after other plaintiffs have joined and additional discovery has been taken, courts conduct a final certification analysis to determine whether the plaintiffs are, in fact, similarly situated. At this stage, courts "require a higher level of proof than for initial conditional certification." 7B Charles Alan Wright, et al., Federal Practice & Procedure § 1807 (3d ed. 2012). Here, certification "should not be based on any single factor in isolation, but on a variety of factors." Id. Indeed, in O'Brien, the Sixth Circuit stated that it was not "creat[ing] comprehensive criteria for informing the similarly-situated analysis." O'Brien, 575 F.3d at 585. The court did, however, identify three factors that are often examined in the second step of the certification analysis: 1) the factual and employment settings of the individual plaintiffs, 2) the different defenses to which the plaintiffs may be subject on an individual basis, and 3) the degree of fairness and procedural impact of certifying the action as a collective action. Id. at 584 (citing 7B Wright, supra, § 1807). One way plaintiffs may demonstrate similarly situated circumstances is "by showing a common theory of FLSA violation." Frye v. Baptist Mem'l Hosp., No. CIV 07-2708-Ma, 2010 WL 3862591, at *3 (W.D. Tenn. Sept. 27, 2010) (quoting O'Brien, 575 F.3d at 585).
Again, the "similarly situated" requirement for a FLSA collective action is less stringent than the "predominance" requirement for a Rule 23 class action. "Plaintiffs are not required to show a 'unified policy' by the defendant in order to be similarly situated." Monroe v. FTS USA, LLC, 763 F. Supp. 2d 979, 994 (W.D. Tenn. 2011) (quoting O'Brien, 575 F.3d at 584). Rather, when "considering decertification, '[t]he question is simply whether the differences among the plaintiffs outweigh the similarities of the practices to which they were allegedly subjected.'" Id. (quoting Frye, 2010 WL 3862591, at *3). The named plaintiff bears the burden of demonstrating that the opt-in plaintiffs are similarly situated to him. O'Brien, 575 F.3d at 584 (citing 7B Wright, supra, § 1807).
Finally, where a subset of the opt-in plaintiffs is not similarly situated, partial decertification is possible. Id. at 586. A collective action need not be "totally decertified if some members are not similarly situated to the others." Id. Instead, "plaintiffs who are not similarly situated . . . [can] be dismissed while keeping intact the partial class." Id. Allowing those opt-in plaintiffs who are similarly situated to the lead plaintiff to proceed as members of a partially certified class preserves the remedial nature of the FLSA and such plaintiffs "should not be barred from the opportunity to be part of a FLSA collective action[.]" Id. "[I]f final certification is granted, the action proceeds to trial on a representative basis." 7B Wright, supra, § 1807.
Plaintiffs contend that because the opt-in Plaintiffs performed the same job duties, were paid in the same way, and "are pursuing similar legal theories to remedy the denial of pay for the time they were required to be at the company's disposal" without compensation, they are similarly situated for purposes of filing a collective action. Defendant argues that the opt-in plaintiffs are not "similarly situated" to Hathaway because their factual and employment settings are not similar to his own, ...