Yoder v. Fla. Farm Bureau, Fla. Farm Bureau Grp., Fla. Farm Bureau Fed'n, Fla. Farm Bureau Cas. Ins. Co.

446 F.Supp.3d 956

Dianna YODER, Clint Walding, and Kelley Williams, individually and on behalf of others similarly situated, Plaintiffs,

v.FLORIDA FARM BUREAU, Florida Farm Bureau Group, Florida Farm Bureau Federation, Florida Farm Bureau Casualty Insurance Company, Florida Farm Bureau General Insurance Company, Southern Farm Bureau Casualty Insurance Company, and Southern Farm Bureau Life Insurance Company, Defendants.

Case No. 1:19-cv-70-AW-GRJ

United States District Court, N.D. Florida.

Signed March 19, 2020

Avishay Moshenberg, Emil Mark Sadykhov, Nicholas Robert Lawson, Jason Anthony Richardson, McDowell & Hetherington LLP, Houston, TX, for Plaintiffs.

Aaron L. Zandy, Bret Carson Yaw, Lori R. Benton, Ford & Harrison LLP, Orlando, FL, Cathleen G. Bremmer, Tampa, FL, Irma Teresa Solares, Markham Richard Leventhal, Stephanie A. Fichera, Miami, FL, Scott Michael Abeles, Washington, DC, for Defendants.

ORDER DENYING CONDITIONAL CLASS CERTIFICATION

Allen Winsor, United States District Judge

This is a collective action under the Fair Labor Standards Act. Plaintiffs Dianna Yoder, Clint Walding, and Kelley Williams sold insurance for the Farm Bureau defendants.¹ ECF No. 1 (Compl.). They sued, saying they were misclassified as independent contractors, worked more than forty hours a week, and are owed overtime wages. Compl. ¶¶ 1-4, 53-87; see also 29 U.S.C. §§ 207, 211(c). They now seek conditional certification under 29 U.S.C. § 216(b). ECF No. 47. They ask for conditional certification of this class:

All former and current independent contractors of Florida Farm Bureau, Florida Farm Bureau Group, Florida Farm Bureau Casualty Insurance Company, Florida Farm Bureau General Insurance Company, Southern Farm Bureau Casualty Insurance Company, and Southern Farm Bureau Life Insurance Company, from April 17, 2016 to present that have worked in the position of insurance agent in the State of Florida.

ECF No. 47 at 8.² Farm Bureau opposes this. ECF No. 54.

I. THE STANDARD

The FLSA authorizes collective actions against employers who violate certain FLSA provisions, including § 207's overtime requirements. See 29 U.S.C. § 216(b) ; Morgan v. Family Dollar Stores, Inc. , 551 F.3d 1233, 1258 (11th Cir. 2008). Unlike traditional class-action suits under rule 23, an FLSA collective action requires class members to opt into the suit. See Hipp v. Liberty Nat. Life Ins. Co. , 252 F.3d 1208, 1216 (11th Cir. 2001) ; see also Cameron-Grant v. Maxim Healthcare Servs., Inc. , 347 F.3d 1240, 1243 n.2 (11th Cir. 2003) (citing Hipp , 252 F.3d at 1208 ).

District courts have broad discretion in deciding whether to certify a class. Hipp , 252 F.3d at 1219. The Eleventh Circuit has suggested a two-step process. See Mickles v. Country Club Inc. , 887 F.3d 1270, 1276-77 (11th Cir. 2018) (citing Hipp , 252 F.3d at 1208 ). Under this approach, courts conditionally certify a class and notify potential class members but then, as the case nears trial, reconsider the certification. Cameron-Grant , 347 F.3d at 1243 n.2 (citing Hipp , 252 F.3d at 1218 ).

At the first step—the "notice stage"—the court decides whether other employees should get notice. Id. (citing Hipp , 252 F.3d at 1218 ). Here, a plaintiff must show "a ‘reasonable basis’ for his claim that there are other similarly situated employees." Morgan , 551 F.3d at 1260-61 (citations omitted). Courts generally apply a "fairly lenient standard" to determine whether "the plaintiffs are truly similarly situated." Anderson v. Cagle's, Inc. , 488 F.3d 945, 953 (11th Cir. 2007). Plaintiffs may meet this burden "by making substantial allegations of class-wide discrimination, that is, detailed allegations supported by affidavits which ‘successfully engage defendants’ affidavits to the contrary." Grayson v. K Mart Corp. , 79 F.3d 1086, 1097 (11th Cir. 1996) ; see also Morgan , 551 F.3d at 1261 (11th Cir. 2008). If the court grants conditional certification, "putative class members are given notice and the opportunity to ‘opt-in.’ " Cameron-Grant , 347 F.3d at 1243 n.2 (quoting Hipp , 252 F.3d at 1218 ).

A motion for decertification generally triggers the second stage. Id. (citing Hipp , 252 F.3d at 1218 ). In this phase, the court benefits from a more developed record, and "the plaintiff bears a heavier burden." Morgan , 551 F.3d at 1261 (citing Anderson , 488 F.3d at 953 ); see also c Cameron-Grant , 347 F.3d at 1243 n.2 (citing Hipp , 252 F.3d at 1218 ).

II. ANALYSIS

Plaintiffs ask me to start with step one, apply a "fairly lenient" standard, and conditionally certify the class. See ECF No. 47 at 12-14. Farm Bureau suggests otherwise. It acknowledges the Eleventh Circuit's suggested two-step approach, but it argues for more exacting review because our record is already developed—and the reason for the lenient first step is to allow record development. ECF No. 54 at 14 (citing Thedford v. Drive In of Evansville, Inc. , No. 2:14-CV-0390-SLB, 2014 WL 5520954, at *2 (N.D. Ala. Oct. 31, 2014) ). Regardless, Farm Bureau argues, I should deny certification under any standard because those in the proposed class will have a diverse range of experiences. In other words, Farm Bureau contends, Plaintiffs have not provided a reasonable basis to conclude their claims can be collectively resolved. ECF No. 54 at 6-13, 17-18.

I will begin with step one. The key inquiry here is whether there is a similarly situated group of employees. See Morgan , 551 F.3d at 1259. Neither the FLSA nor binding caselaw has precisely defined "similarly," but the Eleventh Circuit has said the question is "not whether their positions are identical." Id. at 1259-60 (citing Grayson , 79 F.3d at 1096 ). And it has explained that a court "should satisfy itself" that there are employees who (1) are "similarly situated" as to their job requirements and pay provisions and (2) "desire to ‘opt-in.’ " Dybach v. State of Fla. Dep't of Corr. , 942 F.2d 1562, 1567-68 (11th Cir. 1991) ; see also Morgan , 551 F.3d at 1259. But it has also recognized that the similarities required for "a collective action under § 216(b) must extend ‘beyond the mere facts of job duties and pay provisions.’ " Anderson v. Cagle's, Inc. , 488 F.3d 945, 953 (11th Cir. 2007) (quoting White v. Osmose, Inc. , 204 F. Supp. 2d 1309, 1314 (M.D. Ala. 2002) ). "Otherwise," it held, "it is doubtful that § 216(b) would further the interests of judicial economy, and it would undoubtedly present a ready opportunity for abuse." Id. (quoting White , 204 F. Supp. 2d at 1314 ).

A. The Evidence

Plaintiffs argue they are similarly situated as to their job requirements and pay provisions, ECF No. 47 at 14-15, and they have submitted nearly identical declarations detailing their common experiences and duties. ECF Nos. 47-1 (Yoder Decl.); 47-2 (Walding Decl.); 47-3 (Williams Decl.); 47-4 (Davis Decl.); 47-5 (Butts Decl.). They say Farm Bureau pays agents commissions and uniformly classifies them as contractors. See Yoder Decl. ¶¶ 3, 6. They note that agents have the same primary duties: to service policyholders and sell insurance products; that these duties are set out in contracts, manuals, and guides; and that agents perform these duties similarly by, for example, speaking with customers about their needs, researching eligibility, collecting customers' personal information, helping customers complete applications, generating quotes, and signing people up for their products. Yoder Decl. ¶¶ 8-10. Plus, Plaintiffs can sell only Farm Bureau products and are not allowed to subcontract their duties. Yoder Decl. ¶ 10. Plaintiffs argue too that "virtually identical" contracts establish agent work terms and duties—providing, for example, that agents must adhere to company rate-books, guidelines, and compliance manuals; and report all claims and applications to Farm Bureau, in accordance with its guidelines. Yoder Decl. ¶ 5. The contract also contains a noncompete provision. Yoder Decl. ¶ 5.

Plaintiffs also say agents' schedules are similar, as agents are required to sell Farm Bureau products at Farm Bureau office locations for approximately forty hours a week, meet with policyholders, and do off-hours work like inspecting and photographing policyholder properties. Yoder Decl. ¶ 11. Finally, Plaintiffs note that Farm Bureau provides Plaintiffs with training, supplies, and physical facilities (including front-office staff and computers). Yoder Decl. ¶¶ 11-12. Plaintiffs' evidence also shows agents are managed "in the same way," including measuring agent performance and providing additional training to agents who fail to meet their "quotas." Yoder Decl. ¶ 13.

Farm Bureau provided competing declarations from other agents. See ECF Nos. 55-11 (Hetrick Decl.); 55-12 (Greene Decl.); 55-13 (Palhegyi Decl.); 55-14 (Timmons Decl.); 55-15 (Gonzalez Decl.); 55-16 (Helms Decl.); 55-17 (Tracy Decl.). These agents would fall into the proposed class definition, but according to their declarations, they had different experiences.

Farm Bureau has also filed declarations from managers, some of whom previously worked as Farm Bureau agents, ECF Nos. 55-1 (Lentz Decl.); 55-2 (Blair Decl.); 55-3 (Higginbotham Decl.); 55-4 (Cothron Decl.); 55-5 (Mikell Decl.); 55-6 (Heard Decl.); 55-7 (Warren Decl,); 55-8 (McNeill Decl.); 55-9 (Booker Decl.); 55-10 (Gicalone Decl.), who explain that each agent's Farm Bureau experience is unique.

One agent, Joseph Hetrick of Escambia County, explains he recently incorporated and is planning to hire a customer service representative. He says that he only has to be in the office on "quote days" and prefers to do his business at clients' homes. Hetrick Decl. ¶¶ 4, 6, 10-11. Kevin Greene, a Suwannee County agent, says he views himself as a business owner, controls his own schedule, and enjoys the freedom to work as much or as little as he wants. He also plans to hire a customer service representative. Greene Decl. ¶¶ 4-5.

Raymond Palhegyi, a former agent who recently became the Broward County agency manager,...