IN THE UNITED STATES DISTRICT COURT FOR THE...

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

CAROLINE ALANA LEWIS-GURSKY, and RUBEN CHEZ, on behalf of themselves and all others similarly situated,

Plaintiffs,

v.

CITIGROUP, INC., and JUDGE TECHNICAL SERVICES, INC.,

Defendants.

Case No. 15 Civ. 2887

PLAINTIFFS’ CORRECTED MOTION AND MEMORANDUM OF LAW IN SUPPORT OF

COURT-AUTHORIZED NOTICE PURSUANT TO 29 U.S.C. § 216(b)

Case 8:15-cv-02887-SCB-MAP Document 170 Filed 10/27/16 Page 1 of 37 PageID 3516

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Table of Contents

INTRODUCTION .................................................................................................................................. 1

PROCEDURAL HISTORY ................................................................................................................... 2

STATEMENT OF FACTS ..................................................................................................................... 3

I. Plaintiffs’ Employment with Citi and Staffing Agencies. ......................................................... 3

II. Plaintiffs’ Proposed Collective of HTWs .................................................................................. 4

III. Citi Subjects HTWs to the Same Employment Practices .......................................................... 5

A. Citi Hires and Manages HTWs through a Centralized Staffing Office ........................ 5

B. Citi’s TSO Used the Same Hiring and Onboarding Process for Plaintiffs and Other HTWs. .......................................................................................................................... 6

IV. Citi Controls HTWs’ Day-to-Day Employment and Prohibits them From Reporting Any Time in Excess of 40 Hours Per Week ...................................................................................... 7

V. Citi Uses Common Billing Arrangements for HTWs that Incentivize Underpayment. .......... 10

ARGUMENT ....................................................................................................................................... 12

I. Allowing Plaintiffs to Send Notice Furthers the Remedial Purpose of the FLSA. ................. 12

II. The Evidentiary Burden for Sending Notice Is Modest. ......................................................... 13

A. The First Step in the Notice Process Requires a Showing that Potential Opt-in Plaintiffs May Be “Similarly Situated” ...................................................................... 13

B. Plaintiffs Are Similarly Situated with Respect to Their Allegations that Citi Is Their Joint Employer ........................................................................................................... 16

C. Plaintiffs Have Satisfied their Low Burden To Show that HTWs Were Subject to A Common Policy that Violated the FLSA ................................................................... 19

1. The Possibility that Some Staffing Agencies May Have Paid Overtime Does Not Defeat Conditional Certification. ......................................................................... 21

2. Variations in Job Duties Do Not Defeat Conditional Certification ..................... 23

D. Other HTWs Wish to Join Plaintiffs’ Action. ............................................................ 24

E. Courts Do Not Weigh the Merits or Resolve Conflicting Evidence at the Notice Stage .................................................................................................................................... 25


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III. Plaintiffs Have Satisfied Their Modest Burden to Support Notice to the Class ...................... 26

A. Plaintiffs’ Notice is Fair and Adequate. ..................................................................... 26

B. Citi Should Be Directed to Produce a List of HTWs to Facilitate Notice .................. 27

CONCLUSION .................................................................................................................................... 28


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TABLE OF AUTHORITIES

CASES PAGE(S)

Amador v. Morgan Stanley & Co. LLC,No. 11 Civ. 4326, 2013 WL 494020 (S.D.N.Y. Feb. 7, 2013) ...................................................... 14

Anderson v. Cagle’s, Inc.,488 F.3d 945 (11th Cir. 2007) ....................................................................................................... 13

Antenor v. D & S Farms,88 F.3d 925 (11th Cir. 1996) ......................................................................................................... 17

Bacon v. Subway Sandwiches & Salads LLC,No. 14 Civ. 192, 2015 WL 729632 (E.D. Tenn. Feb. 19, 2015) .................................................... 19

Barron v. Henry Cty. Sch. Sys.,242 F. Supp. 2d 1096 (M.D. Ala. 2003) .................................................................................. 13, 19

Bobbitt v. Broadband Interactive, Inc.,No. 11 Civ. 2855, 2012 WL 1898636 (M.D. Fla. May 23, 2012) (Bucklew, J.) ........................... 12

Brown v. Discrete Wireless, Inc.,No. 14 Civ. 1922, 2014 WL 6607006 (M.D. Fla. Nov. 19, 2014) ................................................. 27

Brown v. Maximum Efficiency Squared, LLC,No. 07 Civ. 889, 2008 WL 1924983 (M.D. Ala. Apr. 30, 2008) ................................................... 23

Ciani v. Talk of The Town Rests., Inc.,No. 14 Civ. 2197, 2015 WL 226013 (M.D. Fla. Jan. 16, 2015) .................................................... 24

Cunningham v. Elec. Data Sys. Corp.,754 F. Supp. 2d 638 (S.D.N.Y. 2010) ............................................................................................ 15

Czopek v. TBC Retail Grp., Inc.,No. 14 Civ. 675, 2015 WL 4716230 (M.D. Fla. Aug. 7, 2015) ............................................... 15, 23

Dybach v. Fla. Dep’t of Corr.,942 F.2d 1562 (11th Cir. 1991) ................................................................................... 11, 14, 23, 24

Earle v. Convergent Outsourcing, Inc.,No. 12 Civ. 1050, 2013 WL 6252422 (M.D. Ala. Sept. 5, 2013) .................................................. 20

Falcon v. Starbucks Corp.,580 F. Supp. 2d 528 (S.D. Tex. 2008) ..................................................................................... 19, 22


v

Geter v. Galardi S. Enters., Inc.,No. 14 Civ. 21896, 2015 WL 2384068 (S.D. Fla. May 19, 2015) ................................................. 24

Grayson v. K Mart Corp.,79 F.3d 1086 (11th Cir. 1996) ........................................................................................... 12, 16, 25

Guerra v. Big Johnson Concrete Pumping, Inc.,No. 05 Civ. 14237, 2006 WL 2290512 (S.D. Fla. May 17, 2006) ................................................. 24

Hernandez v. Two Bros. Farm, LLC,No. 08 Civ. 20398, 2008 WL 4613069 (S.D. Fla. Oct. 15, 2008) ................................................. 13

Hipp v. Liberty Nat. Life Ins. Co.,252 F.3d 1208 (11th Cir. 2001) ............................................................................................... 13, 16

Hoffmann-La Roche Inc. v. Sperling,493 U.S. 165 (1989). Notice .......................................................................................................... 12

Iraheta v. Lam Yuen, LLC,No. 12 Civ. 1426, 2012 WL 5995689 (D. Md. Nov. 29, 2012) ....................................................... 4

Jackson v. Fed. Nat’l Mortg. Ass’n,No. 15 Civ. 1411, 2016 WL 3098077 (N.D. Ga. Mar. 29, 2016) ........................................... passim

Kaluom v. Stolt Offshore, Inc.,474 F. Supp. 2d 866 (S.D. Tex. 2007) ........................................................................................... 19

Kerce v. W. Telemarketing Corp.,575 F. Supp. 2d 1354 (S.D. Ga. 2008) ........................................................................................... 25

Korenblum v. Citigroup, Inc.,No. 15 Civ. 3383, 2016 WL 3945692 (S.D.N.Y. July 19, 2016) ................................. 14, 15, 22, 23

Kreher v. City of Atlanta, Ga.,No. 04 Civ. 2651, 2006 WL 739572 (N.D. Ga. Mar. 20, 2006) .................................................... 16

Kucker v. Petco Animal Supplies Stores, Inc.,No. 14 Civ. 9983, 2016 WL 237425 (S.D.N.Y. Jan. 19, 2016) ..................................................... 14

Layton v. DHL Exp. (USA), Inc.,686 F.3d 1172 (11th Cir. 2012) ..................................................................................................... 17

Lima v. Int’l Catastrophe Solutions, Inc.,493 F. Supp. 2d 793 (E.D. La. 2007) ................................................................................. 16, 18, 23

Longcrier v. HL-A Co.,595 F. Supp. 2d 1218 (S.D. Ala. 2008) .................................................................................... 20, 23


vi

Maudlin v. Johnny Kynard Logging, Inc.,No. 08 Civ. 307, 2009 WL 455479 (S.D. Ala. Feb. 20, 2009) ...................................................... 23

Morgan v. Family Dollar Stores, Inc.,551 F.3d 1233 (11th Cir. 2008) .............................................................................................. passim

Myers v. Hertz Corp.,624 F.3d 537 (2d Cir. 2010) ........................................................................................................... 15

Pendlebury v. Starbucks Coffee Co.,No. 04 Civ. 80521, 2005 WL 84500 (S.D. Fla. Jan. 3, 2005) .................................................. 24, 25

Plummer v. PJCF, LLC,No. 15 Civ. 37, 2015 WL 2019380 (M.D. Fla. Apr. 30, 2015) ..................................................... 27

Robbins-Pagel v. Puckett,No. 05 Civ. 1582, 2006 WL 3393706 (M.D. Fla. Nov. 22, 2006) ................................................. 24

Russell v. Illinois Bell Tel. Co.,575 F. Supp. 2d 930 (N.D. Ill. 2008) ............................................................................................. 20

Russell v. Life Win, Inc.,No. 11 Civ. 2802, 2014 WL 7877787 (M.D. Fla. Apr. 23, 2014) ........................................... 14, 25

Scott v. Heartland Home Fin., Inc.,No. 05 Civ. 2812, 2006 WL 1209813 (N.D. Ga. May 3, 2006) .............................................. 14, 16

Stuven v. Texas de Brazil (Tampa) Corp.,No. 12 Civ. 1283, 2013 WL 610651 (M.D. Fla. Feb. 19, 2013) (Bucklew, J.) ............................. 27

Temple v. Synthes Corp.,498 U.S. 5 (1990) ............................................................................................................................. 4

Tyler v. Payless Shoe Source, Inc.,No. 05 Civ. 33, 2005 WL 3133763 (M.D. Ala. Nov. 23, 2005) .................................................... 24

Vondriska v. Premier Mortg. Funding, Inc.,564 F. Supp. 2d 1330 (M.D. Fla. 2007) ............................................................................. 14, 21, 25

STATUTES

29 U.S.C. § 216(b) .................................................................................................................... 11, 12, 25

OTHER AUTHORITIES

David Weil, Enforcing Labour Standards in Fissured Workplaces: The US Experience ....................................................................................................................................... 1


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David Weil, The Fissured Workplace: Why Work Became So Bad for So Many and What Can Be Done to Improve It (Harvard Univ. Press, Feb. 3, 2014) ........................................... 1

Rule 19(a) ............................................................................................................................................... 4

Rule 20(a) ............................................................................................................................................. 13

Rule 30(b)(6) .......................................................................................................................................... 5


INTRODUCTION

Plaintiffs Caroline Alana Lewis-Gursky (“Gursky”) and Ruben Chez, along with the

four opt-in Plaintiffs who have joined this action (collectively, “Plaintiffs”) respectfully

request authorization to provide notice of this lawsuit to other Hourly Technology Workers

(“HTWs”) who worked for Citigroup, Inc. (“Citi”) during the last three years so that they can

join the case and stop their Fair Labor Standards Act (“FLSA”) statutes of limitations from

running.

Citi has complete control over HTWs’ employment but claims that staffing agencies

like Judge Technical Services, Inc. (“Judge”), not Citi, employ them. In fact, the agencies

recruit HTWs and issue their paychecks, but play no role in their day-to-day employment.

Citi, not the agencies, assigns and supervises HTWs’ work and subjects them to Citi’s

policies. The use of similar “fissured” employment structures to avoid compliance with the

FLSA has become so prevalent that the U.S. Department of Labor has made investigating

and exposing it a priority.1

This case seeks to hold Citi liable as HTWs’ joint employer for their unpaid overtime

claims under the FLSA.2 Citi requires HTWs to work over 40 hours per week, but only pays

their agencies for 40 hours’ worth of work. The agencies in turn limit HTWs’ pay to 40

hours per week. As set forth below, this common scheme of underpayment, which applied to

1 See DOL Misclassification Initiative, available at http://www.dol.gov/whd/workers/ misclassification. While outsourcing employment responsibilities can be profitable, it results in the stagnation of wages and frequently leads to violations of wage-and-hour laws. See e.g., David Weil, The Fissured Workplace: Why Work Became So Bad for So Many and What Can Be Done to Improve It (Harvard Univ. Press, Feb. 3, 2014); David Weil, Enforcing Labour Standards in Fissured Workplaces: The US Experience, 22 Econ. & Lab. Rel. Rev. 2, at 33-54 (July 2011). 2 A finding that Citi is a joint employer would mean that Citi is jointly and severally liable for compliance with the FLSA. See U.S. DOL, Administrator’s Interpretation No. 2016-1 (Jan. 20, 2016) at 2.


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all HTWs regardless of agency, location, or supervisor, satisfies Plaintiffs’ minimal burden to

show that they and other HTWs are similarly situated with respect to their overtime claims.

Four HTWs have already opted in to this lawsuit, showing that there are other employees

interested in holding Citi liable for its overtime violations.

PROCEDURAL HISTORY

This case was transferred to this Court from the Southern District of New York on

December 11, 2015. See ECF No. 40. The case management order limited Phase I discovery

to “Plaintiffs’ individual claims, the claims of any opt-in Plaintiffs . . . and collective action

certification issues.” ECF No. 94. After the Court denied Defendants’ motion to compel

arbitration, see ECF No. 117, discovery commenced. The parties disagreed about the scope

of “collective action certification issues,” leading to substantial motion practice. The orders

resulting from these disputes denied production of: (1) contact information and employment

data for HTWs, ECF No. 137; (2) a list of agencies that supplied HTWs to Citi, ECF No.

137; (3) contracts between Citi and staffing agencies other than those that employed

Plaintiffs, ECF No. 137; (4) deposition testimony from staffing agencies concerning their

contractual relationships with Citi and how they paid HTWs, ECF No. 137; (5) depositions of

Citi employees with knowledge of the Fieldglass database, ECF No. 160; and (6) the

deposition of Justin Hering, a former Citi manager who indirectly supervised Plaintiffs

Gursky and Marlow.3 See ECF No 164.

3 Ex. 4 (Gursky Tr.) 14:10-15:18; Ex. 5 (Marlow Tr.) 34:24-35:13


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STATEMENT OF FACTS

I. Plaintiffs’ Employment with Citi and Staffing Agencies.

Plaintiffs were all employed as HTWs at Citi facilities. Gursky and Marlow worked

on Citi’s Global Voice Integration team in Tampa, Florida;4 Chez was an Anti-Money

Laundering Quality Control Analyst in Jersey City, New Jersey;5 Rodriguez was a Network

Analyst in Irving, Texas;6 and Johnson and Young worked as Business Analysts in Irving,

Texas.7

Each Plaintiff was employed through one or more of four different staffing agencies

during their employment. Chez and Rodriguez were employed through Judge.8 Plaintiffs

Gursky and Marlow were employed by Judge and Axelon Services Corporation.9 Plaintiffs

Johnson and Young were employed by Software Guidance & Assistance, Inc. (“SGA”), but

since July 2016, Young has been employed by Fintech, Inc.10

All Plaintiffs recorded some of the hours they worked in Fieldglass, a web-based

vendor management database that Citi used to track HTWs’ time for purposes of billing the

staffing agencies for their work.11 Despite working at different Citi facilities and business

4 Ex. 4 (Gursky Tr.) 51:7-11; 84:13-22; 235:5-23; Ex. 5 (Marlow Tr.) 73:2-9. A third HTW, William Bentley, joined this action, but withdrew after determining he was employed outside of the maximum statute of limitations period. See ECF No. 144. 5 Ex. 6 (Chez Tr.) 74:17-25; Ex. 21 (Chez Work Order, LGCITI000883-88). 6 Ex. 7 (Rodriguez Tr.) 39:16-25; 71:3-11. 7 Ex. 8 (Young Tr.) 22:4-6; 31:1-7; 179:8-18. Johnson has privately settled her claims with SGA; as a result, she was not deposed in this action. Johnson intends to seek court approval of that settlement. 8 Ex. 6 (Chez Tr.) 14:23-25; Ex. 7 (Rodriguez Tr.) 39:1-4. 9 Ex. 4 (Gursky Tr.) 14:3-9; Ex. 5 (Marlow Tr.) 12:25-13:15; 55:1-56:3 (testifying that after Citi had a disagreement with Judge, Citi arranged for Marlow and other contractors from Justin Hering’s team to leave Judge and work for Axelon and “there would be no hiccup in hours or pay, what have you. It was just going to roll smoothly over to another staffing agency.”). 10 Ex. 8 (Young Tr.) 13:10-24; 36:20-37:3. 11 Ex. 9 (Gruppuso Tr.) 136:9-14; Ex. 13 (Citi’s Resp. to Pls.’ First Interrogs.) at 12 (Resp. to Interrog. 6).


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units, under different Citi managers and staffing agencies, Plaintiffs consistently testified that

although they worked over 40 hours per week,12 Citi prohibited them from reporting time

worked in excess of 40 hours per week in Fieldglass.13 Plaintiffs’ testimony is confirmed by

Citi’s Fieldglass records, which show 40 hours or fewer for nearly all weeks.14

Plaintiffs’ staffing agencies, which were billed only for the 40 hours (or fewer) that

appeared in Fieldglass, in turn only paid Plaintiffs for the number of hours in Fieldglass.15

II. Plaintiffs’ Proposed Collective of HTWs.

Plaintiffs seek to provide notice to “HTWs,” defined as workers who were supplied to

Citi through staffing agencies (including but not limited to Judge16) and paid on an hourly

basis. The HTWs in the proposed collective were all classified under the “Hourly” time

template in Fieldglass, and either (1) categorized under the “TS200” and “TS300”

“commodity codes” in Fieldglass (as “technology resources” whose employment with Citi

12 Ex. 7 (Rodriguez Tr.) 29:18-30:5; 41:17-44:10; Ex. 5 (Marlow Tr.) 31:4-34:16; Ex. 4 (Gursky Tr.) 74:18-78:7; Ex. 6 (Chez Tr.) 154:12-155:20; 286:9-11; Ex. 8 (Young Tr.) 61:22-64:25; 69:5-70:8; 75:17-76:5; 78:4-9. 13 Ex. 4 (Gursky Tr.) 33:15-34:6; 40:2-21; Ex. 5 (Marlow Tr.) 38:1-39:12, 94:23-96:5; Ex. 7 (Rodriguez Tr.) 31:14-20; 46:23-47:3;Ex. 6 (Chez Tr.) 155:25-156:17, 163:15-165:16; Ex. 8 (Young Tr.) 42:2-10; 48:8-13; 78:15-79:7; 100:23-101:12; 107:8-109:4; 148:6-149:8. 14 Exs. 15-20 (LGCITI001004, 1005, 1023, 1024, 1025, 1196 (Fieldglass reports for Plaintiffs with majority of “Timesheet Billable Hours” entries not exceeding 40 hours). 15 Ex. 8 (Young Tr.) 38:22-42:21; 178:15-21 (was paid based on time entered into Fieldglass). Judge required its employees to enter their hours into a separate system, EaZyTyme, for payment, but Plaintiffs were either told by Citi managers to report no more than 40 hours in EaZyTyme, or were told by either Citi or Judge managers that EaZyTyme and Fieldglass entries had to match one another. Ex. 4 (Gursky Tr.) 33:10-34:6 (Citi manager instructed her to alter EaZyTyme records when she reported more than 40 hours); Ex. 7 (Rodriguez Tr.) 24:9-26:14; 29:18-31:20 (Citi manager instructed him to alter EaZyTyme records to reflect no more than 40 hours per week); Ex. 6 (Chez Tr.) 160:22-161:7, 165:17-166:4, 344:16-21 (Judge manager instructed him that Fieldglass and EaZyTyme entries had to match); Ex. 5 (Marlow Tr.) 91:9-92:21 (Citi manager instructed her to enter same hours into Fieldglass and EaZyTyme). 16 Although Judge is the only staffing company named as a defendant in this case, jointly liable defendants are not necessary parties. Temple v. Synthes Corp., 498 U.S. 5, 7 (1990); see also, e.g., Iraheta v. Lam Yuen, LLC, No. 12 Civ. 1426, 2012 WL 5995689, at *5 (D. Md. Nov. 29, 2012) (“an unnamed co-employer is not a necessary party . . . under Rule 19(a)”).


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was managed through Citi’s Technology Staffing Office;17) or (2) were working as AML

Analysts.18 The proposed collective encompasses HTWs who worked for Citi between three

years prior to the date of the Court’s decision on this motion and March 1, 2016.19

III. Citi Subjects HTWs to the Same Employment Practices.

A. Citi Hires and Manages HTWs through a Centralized Staffing Office.

Citi’s Technology Staffing Office (“TSO”) enters into a Master Professional Services

Agreement (“MSA”) with each staffing agency that supplies workers Citi.20 Citi dictates the

terms of each HTW’s engagement through Work Orders21 and supplies the schedule of pay

rates for HTWs.22 These pricing models are consistent across staffing agencies.23

Citi’s TSO groups workers as either technology or non-technology.24 Donna

Gruppuso, Citi’s Rule 30(b)(6) designee and head of Citi’s TSO, testified that until May or

June of 2016, her office was exclusively responsible for sourcing technology workers.25

17 Ex. 9 (Gruppuso Tr.) 252:12-253:19; 256:14-257:3. The TS100 commodity code identifies non-IT resources. Id. 256:24-257:3. Citi is capable of using its data systems to ascertain the members of this collective. During Phase I discovery, Citi produced a chart identifying 1,158 Citi workers classified under the “hourly” time template at seven of Citi’s largest facilities between May 2012 and June 15, 2016. Ex. 14 (chart of hourly workers, LGCITI000881). 18 Although Plaintiff Chez experienced violations that are similar to those of other employees hired through Judge, see Ex. 6 (Chez Tr.) 163:15-165:3, it appears that the instruction to limit his work hours to 40 per week did not emanate from Citi’s Technology Staffing Office as he was under the TS100 commodity code. See Ex. 21 (Chez Work Order, LGCITI000883-88) at LGCITI000884. Accordingly, Plaintiffs include AML Analysts in the proposed collective. 19 Beginning in or about the first quarter of 2016, after this case was filed, Citi changed its practices to permit HTWs to record all of their time in Fieldglass. After this point, Plaintiffs’ and opt-ins’ staffing agencies appear to have begun paying overtime. Ex. 8 (Young Tr.) 50:18-51:16. 20 See, e.g., Ex. 22 (Citi MSA with Judge Technical Staffing, Inc., LGCITI001112-1149). 21 Id. § 3.1 (LGCITI001116). These terms include specific requirements the vendors must meet for each procured worker, including guaranteeing that the workers will meet job skill requirements, conducting employer reference checks for the last two employers or last five years of employment (whichever is greater), obtaining answers to specific criminal background questions from each worker, and requiring workers to “observe the working hours, work rules and holiday schedule of [Citi] when working on [Citi]’s facilities.” Id.LGCITI001138-1139. 22 Id. § 9.1 (LGCITI001121). 23 Ex. 9 (Gruppuso Tr.) 109:20-110:22. 24 Id. 23:7-24:3.


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The TSO requires agencies to follow “Rules of Engagement,” which “are meant to

ensure consistent processes are adhered to in order to run a more effective operating

model.”26 All agencies that provide HTWs to Citi are required use Fieldglass.27

B. Citi’s TSO Used the Same Hiring and Onboarding Process for Plaintiffs and Other HTWs.

Citi’s TSO uses Fieldglass to select and manage HTWs through a centralized process,

detailed in the Rules of Engagement.28 This process is uniform throughout Citi’s

operations.29

The TSO first creates a requisition in Fieldglass setting forth the specifications

required for the position.30 The requisition is then distributed to staffing agencies, which in

turn submit the resumes of potential candidates, also via Fieldglass.31 Grupposo’s team of

TSO Recruiters reviews the resumes of the submitted candidates and forwards selected

resumes to Citi’s business contact (i.e. hiring manager) based on who matches the skill set

requirements of the position.32 Citi’s business contact decides which candidates to interview,

interviews potential candidates, and selects a candidate to fill the position.33 After the Citi

25 Id. 30:5-31:21. 26 See Ex. 23 at 1 (Citi Technology US IT Staff Augmentation Preferred Supplier Program Rules of Engagement (“Rules of Engagement”), LGCITI001173-1182) at LGCITI001173). 27 Id.; Ex. 9 (Gruppuso Tr.) 95:21-96:5. Under the Rules of Engagement, the following Citi business units utilize technology workers: ICG Technology, Global Consumer Technology (GCT), Chief Technology Office (CTO), Technology Infrastructure (CTI), Citi Shared Services (CSS), Risk Management (OTRM), and Information Security (OCIS). Ex. 23 at 1 (Rules of Engagement, LGCITI001173); also Ex. 9 (Gruppuso Tr.) 96:22-100:13.28 Ex. 10 (Truong Tr.) 41:19-43:10 (testifying that Citi’s staffing office under Donna Gruppuso supplies contractor candidates for hire). 29 Ex. 9 (Gruppuso Tr.) 66:15-22. 30 Id. 17:20-18:17; Ex. 10 (Truong Tr.) 54:2-56:10. 31 Ex. 9 (Gruppuso Tr.) 59:11-60:13. 32 Id. 60:14-61:10; Ex. 10 (Truong Tr.) 62:8-20. 33 Ex. 9 (Gruppuso Tr.) 61:11-62:19; Ex. 11 (Stokes Tr.) 17:3-19:23; 23:4-22; Ex. 12 (Mark Tr.) 72:4-73:20; Ex. 10 (Truong Tr.) 62:21-64:3.


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business contact makes a selection, a TSO Recruiter reaches out to the staffing agency to

extend an offer in writing or through Fieldglass, 34 and if it is accepted, begins the onboarding

process.35

Citi generates a Work Order for each worker, which sets forth the details of the

assignment,36 including whether the worker is assigned to an “Hourly” time reporting

structure.37

IV. Citi Controls HTWs’ Day-to-Day Employment and Prohibits them From Reporting Any Time in Excess of 40 Hours Per Week.

Citi assigns HTWs’ tasks and supervises their work on a daily basis.38 Citi managers

ensure that their teams, which consist of Citi employees working alongside HTWs

performing the same job,39 successfully carry out their assignments.40 Citi supplies the office

space, computers, database, and network where HTWs work.41 Citi requires HTWs to

comply with Citi policies42 and can terminate an HTW’s assignment for any reason,

34 Ex. 23 (Rules of Engagement, LGCITI001177) at 5. 35 Ex. 9 (Gruppuso Tr.) 62:20-63:17. The TSO requires that “All transactional activities are to be coordinated through the Staffing Office Recruiters: including: position requirements distribution, position requirements questions regarding specifications, resume submittals and feedback, bill rate negotiations, on/off boarding, resource start dates, issues management and due diligence requirements.” Ex. 23 (Rules of Engagement, LGCITI001174) at 2. 36 Ex. 9 (Gruppuso Tr.) 42:2-43:18; 49:24-50:14; 186:25-188:23; Ex. 10 (Truong Tr.) 65:4-66:7. See also, e.g. Ex. 29 (Gursky Work Order, LGCITI000995-1003). 37 See Ex. 29 (Gursky Work Order, LGCITI000995-1003) at 2 (listing “Time Sheet Type” as “Hourly”). 38 Ex. 9 (Gruppuso Tr.) 149:5-151:8; Ex. 11 (Stokes Tr.) 22:11-14; Ex. 10 (Truong Tr.) 45:17-46:4. 39 Ex. 8 (Young Tr.) 179:8-18; Ex. 11 (Stokes Tr.) 101:15-102:21; Ex. 12 (Mark Tr.) 16:20-19:24; Ex. 10 (Truong Tr.) 29:22-30:20; Ex. 4 (Gursky Tr.) 111:10-112:1; cf. Ex. 7 (Rodriguez Tr.) 39:1-18 (held the same Network Analyst position as a Judge contractor and later as a direct Citi employee); Ex. 5 (Marlow Tr.) 115:18-116:1 (transitioned from an HTW position to being a direct Citi employee in order to keep her job). 40 Ex. 11 (Stokes Tr.) 29:8-30:20; Ex. 12 (Mark Tr.) 42:5-43:5. 41 Ex. 12 (Mark Tr.) 44:7-47:21. 42 Ex. 9 (Gruppuso Tr.) 115:4-18; 280:15-281:24.


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including as a result of violating company policy or poor performance.43 Citi managers

consider an HTW’s job performance in deciding whether to extend an assignment.44

Citi requires HTWs to enter their time worked each week into Fieldglass.45 Citi

managers review and approve Fieldglass timesheets.46 When reviewing HTWs’ timesheets,

Citi managers ensure that time entries do not exceed a predetermined budget.47 Budgets

assume each project will require 40 hours or less of work per week.48 As a result, managers

reject timesheets showing more than 40 hours during a workweek.49 Even when Plaintiffs’

managers required them to work over 40 hours, they refused to allow them to record this time

in Fieldglass.50

The 40-hour cap on reported hours was not the exception, but the rule at Citi. For

instance, Citi manager Tai Truong lectured an HTW in an email, “You are an hourly

contractor, please book the time you work as per agreement in the contract, no more than 8

hours per day, no more than 40 hours per week.”51 Rodriguez testified that his supervisor

required him to move hours he worked over 40 from one week to another in Fieldglass.52

Young was “instructed by Citi employees that we were not going to get paid over 40 hours” 43 Ex. 9 (Gruppuso Tr.) 53:19-24; 119:20-121:15; Ex. 12 (Mark Tr.) 51:2-25. 44 Ex. 10 (Truong Tr.) 69:9-23. 45 Ex. 9 (Gruppuso Tr.) 136:9-14; 277:16-23. 46 Id. 76:3-77:9; 191:15-193:6; Ex. 10 (Truong Tr.) 84:16-85:14. 47 Ex. 9 (Gruppuso Tr.) 194:10-195:8. 48 Ex. 11 (Stokes Tr.) 43:20-24; Ex. 10 (Truong Tr.) 61:8-62:7 (in creating contractor requisitions, the assumption is that the contractors will work 40 hours per week). See also Ex. 29 (Gursky Work Order, LGCITI000995-1003) at 1 (setting budgeted hours per week at 40).49 Ex. 11 (Stokes Tr.) 39:11-16; Ex. 10 (Truong Tr.) 90:16-92:25. 50 Ex. 11 (Stokes Tr.) 34:16-36:25, 39:11-16, 139:9-140:6, 150:16-151:25; Ex. 4 (Gursky Tr.) 78:1-5; 81:10-18; 210:2-7; 215:7-17. Ex. 5 (Marlow Tr.) 31:4-34:16; Ex. 24 (Jun. 26, 2014 Email from Richard Stokes, CITIEM000127) (“You need to keep in mind also, CITI does NOT pay contractors for overtime, therefore, I break the hours up.”). 51 Ex. 25 (Oct. 20, 2015 Email from Tai Truong, CITIEM000011-12) at CITIEM000011; see also Ex. 26 (Mar. 12, 2014 Email from Utiiya Basu, CITIEM0001-3) at CITIEM0002 (“Unfortunately the challenge we have with Fieldglass is that the total hours for a day cannot exceed 8 and for the week 40.”). 52 Ex. 7 (Rodriguez Tr.) 25:17-26:10.


9

and was told “not to enter anything over 40” into Fieldglass.53 Citi’s managers understood

that this practice would ultimately cause HTWs to be underpaid by their staffing agencies, as

reflected in numerous statements confirming that they “don’t pay overtime” at Citi.54

The practice of capping HTWs’ hours is reflected in an email that Donna Gruppuso

distributed to Citi business units in January 2016, after this case was filed, outlining changes

to the guidelines Citi business managers must follow for how HTWs record hours worked.55

Gruppuso’s email instructed that “all hours worked must be recorded regardless of whether

they were approved.”56 The email was forwarded on throughout Citi management, and one

manager commented: “The below means contractors are no longer capped at 40 hour work

weeks. We will be paying them for every hour worked. This means a much tighter vigilance

on overtime as it relates to contractors.”57 A second manager added, “Please see note below

regarding the 40 hour cap on weekly contractor hours – it is now being lifted.”58 Opt-in

Plaintiff Nicole Young confirmed that this email changed the existing practice, such that she

began to be paid for overtime after Citi made this announcement.59 This change in policy

and the instruction to “start putting in actual time that we worked into Fieldglass” was

53 Ex. 8 (Young Tr.) 107:8-109:4; 148:6-149:8; 100:23-101:12. See also id. 48:8-13 (Citi manager announced during team meetings with Young and other contractors that “it was not paying for hours over 40, so in Fieldglass, we should only report 40 hours”). 54 Ex. 8 (Young Tr.) 111:5-112:5 (describing supervisor’s response when one of Young’s timesheets was rejected); see also Ex. 4 (Gursky Tr.) 40:13-21 (told by upper management that “we [consultants] were paid no overtime.”); Ex. 7 (Rodriguez Tr.) 30:3-5 (supervisor told Rodriguez that the “contract doesn’t pay overtime”); Ex. 6 (Chez Tr.) 289:19-290:2 (supervisor told him, “You keep on asking about overtime. You know we don’t approve overtime.”); Ex. 5 (Marlow Tr.) 95:10-13 (“We were told to enter only 40 a week. That was it. That’s all we could get paid for. There was never money in the budget to pay overtime is what I was told.”). 55 Ex. 27 (Jan. 21, 2016 Email Chain, CITIEM000029-31) at CITIEM000030-31. 56 Id. at CITIEM000031.57 Id. at CITIEM000029.58 Id. 59 Ex. 8 (Young Tr.) 50:25-51:25 (“an email [] went out that something was lifted from Citi, that they [were] going to start paying contractors for overtime”).


10

communicated to Young and other contractors during their weekly meeting with their

manager, Tai Truong,60 and is reflected in subsequent management meetings about budgeting

for HTWs.61

V. Citi Uses Common Billing Arrangements for HTWs that Incentivize Underpayment.

Plaintiffs and other HTWs worked for Citi under Citi’s “Hourly” time template.62

Under the Hourly billing structure, Citi paid agencies an hourly rate for the time worked by

HTWs.63

Citi contends that it places all responsibility for paying HTWs, including overtime

payments, if any, on its staffing agencies.64 In other words, although Citi effectively capped

its payments to staffing agencies by limiting the time workers entered into Fieldglass to 40

hours, it argues that staffing agencies were responsible for determining whether those

employees worked more than 40 hours, and if so, to pay them accordingly.65 As to the

Plaintiffs here, this is, of course, not what actually happened. Each Plaintiff was paid by

their staffing agency only for the time that was billed to Citi, even when their actual hours

worked exceeded 40 hours per week.66

60 Id. 61 Ex. 28 (May 6, 2016 email from Pat Ruggiero, CITIEM000039) (discussing lack of funding, and stating, “the solution was to not allow people to charge any more than 40 hours a week even if more worked”). 62 Exs. 15-20 (LGCITI001004, 1005, 1023, 1024, 1025, 1196 (Fieldglass reports for Plaintiffs showing “hourly” in the “Time Template” column). 63 Ex. 29 (Gursky Work Order, LGCITI000995-1003) at LGCITI000996 (listing “bill rate”); Ex. 9 (Gruppuso Tr.) 138:23-139:8; 186:5-9. 64 Ex. 13 (Citi’s Resp. to Pls.’ First Interrogs.) at 9 (Resp. to Interrog. No. 3) (“Citi states that it does not know how its affiliates’ vendors paid their employees who were assigned to provide services to Citi affiliates”). 65 Citi’s claimed lack of knowledge about how HTWs were paid is belied by numerous statements by Citi managers that reflect their knowledge that HTWs would not get paid as a result of time being underreported in Fieldglass. See Part IV supra; Ex. 24 (Jun. 26, 2014 Email from Richard Stokes, CITIEM000127) (“CITI does NOT pay contractors for overtime”). 66 Ex. 8 (Young Tr.) 38:22-42:21; 178:15-21 (was paid based on time entered into Fieldglass); Ex. 4


11

Citi’s 40-hour cap on Fieldglass hours consistently caused staffing agencies to

underpay HTWs. If an agency paid the HTW for hours worked over 40 at the appropriate

overtime rate, but was only paid for 40 hours by Citi, its profit margin would quickly

diminish to a point of negative revenue. Figure 1 below, which is based on the pay rate and

bill rate for Plaintiff Gursky, demonstrates this point.67

Fig. 1: Agency billing rate vs. pay to hourly workers

The blue line represents what the law requires the agency to pay – $46.35 per hour for

the first 40 hours, and $69.53 per hour for hours after 40. The green line shows what Citi

pays the agency (capped at 40 hours). The dotted line illustrates the point at which the

agency’s revenue is less than what it pays the worker.68 After this point, the agency would

lose money.

(Gursky Tr.) 33:10-34:6 (Citi manager instructed her to alter EaZyTyme records when she reported more than 40 hours); Ex. 7 (Rodriguez Tr.) 24:9-26:14; 29:18-31:20 (Citi manager instructed him to alter EaZyTyme records to reflect no more than 40 hours per week); Ex. 6 (Chez Tr.) 160:22-161:7, 165:17-166:4, 344:16-21 (Judge manager instructed him that Fieldglass and EaZyTyme entries had to match); Ex. 5 (Marlow Tr.) 90:22-92:1 (Citi manager instructed her to enter same hours into Fieldglass and EaZyTyme). 67 See Brooks Decl. ¶ 4; Ex. 29 (Gursky Work Order, LGCITI000995-1003) at LGCITI000996. 68 Figure 1 does not account for costs other than compensation, e.g., employer payroll taxes, fringe benefits, or the staffing agency’s overhead costs.

0500

100015002000250030003500

5 15 25 35 45 55

TotalCost

Hours Worked

Agency Payto Worker

RevenueReceived byAgency

NegativeRevenue toStaffing Agency


12

ARGUMENT

I. Allowing Plaintiffs to Send Notice Furthers the Remedial Purpose of the FLSA.

The FLSA authorizes aggrieved employees to bring a collective action on “behalf of .

. . themselves and other employees similarly situated.” 29 U.S.C. § 216(b). In furtherance of

the FLSA’s “broad remedial purpose,” courts have the authority to notify potential opt-in

plaintiffs that they may join an existing action early in the proceedings. See Dybach v. Fla.

Dep't of Corr., 942 F.2d 1562, 1567 (11th Cir. 1991) (quoting Braunstein v. E. Photo. Labs.,

600 F.2d 335, 336 (2d Cir.1978)); see also Bobbitt v. Broadband Interactive, Inc., No. 11

Civ. 2855, 2012 WL 1898636, at *2 (M.D. Fla. May 23, 2012) (Bucklew, J.) (authorizing 29

U.S.C. § 216(b) notice).

Collective actions provide workers with an opportunity to “lower individual costs to

vindicate rights by the pooling of resources,” and enable the “efficient resolution in one

proceeding of common issues of law and fact.” Hoffmann-La Roche Inc. v. Sperling, 493

U.S. 165, 170 (1989). Notice here will provide Citi’s HTWs with a single forum to

determine whether Citi and its staffing agency suppliers, as joint employers, engaged in a

practice of permitting (or requiring) off-the-clock work in violation of the FLSA.

Prompt notice will protect the rights of HTWs. “The benefits of a collective action

‘depend on employees receiving accurate and timely notice . . . so that they can make

informed decisions about whether to participate.’” Morgan v. Family Dollar Stores, Inc.,

551 F.3d 1233, 1259 (11th Cir. 2008) (quoting Hoffmann-La Roche, 493 U.S. at 170). This

is because the FLSA’s statute of limitations continues to run until an employee files a written

consent to join. See 29 U.S.C. § 216(b); Grayson v. K Mart Corp., 79 F.3d 1086, 1106 (11th


13

Cir. 1996) (FLSA opt-in plaintiffs’ actions are deemed to commence when they file their

consent to opt in). Therefore, it is critical that employees receive notice of the suit and have

the opportunity to opt in before their claims are reduced or extinguished by the passage of

time.

II. The Evidentiary Burden for Sending Notice Is Modest.

A. The First Step in the Notice Process Requires a Showing that Potential Opt-in Plaintiffs May Be “Similarly Situated.”

The Eleventh Circuit has endorsed a two-step approach in FLSA collective actions.

See Anderson v. Cagle's, Inc., 488 F.3d 945, 953 (11th Cir. 2007). Under this approach, “[a]t

the initial stage, courts apply a fairly lenient standard[,]” relying “primarily on pleadings and

affidavits” to decide whether to send notice to the putative collective. Id. (internal quotation

marks omitted). After the close of discovery on the merits of the claims, “the court has much

more information on which to base its decision, and makes a factual determination on the

similarly situated question.” Id. (internal quotation marks omitted).

Plaintiffs’ burden at this initial stage is “light.” Hernandez v. Two Bros. Farm, LLC,

No. 08 Civ. 20398, 2008 WL 4613069, at *1 (S.D. Fla. Oct. 15, 2008). The Eleventh Circuit

has described the first-stage standard “as ‘not particularly stringent,’ ‘fairly lenient,’

‘flexible,’ ‘not heavy,’ and ‘less stringent than that for joinder under Rule 20(a) or for

separate trials under 42(b).’” Morgan, 551 F.3d at 1260-61 (internal alteration and citations

omitted). It can typically be met “by making substantial allegations . . . supported by

affidavits.” Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001) (internal

quotation marks omitted). To make the required showing, plaintiffs do not need to

demonstrate that there is a “unified policy, plan, or scheme.” Id. (internal quotation marks


14

omitted). Rather, a plaintiff must “make some rudimentary showing of commonality

between the basis for his claims and that of the potential claims of the proposed class.”

Barron v. Henry Cty. Sch. Sys., 242 F. Supp. 2d 1096, 1103 (M.D. Ala. 2003). Plaintiffs can

meet this standard by pointing to “some identifiable facts or legal nexus [to] bind the claims

so that hearing the cases together promotes judicial efficiency.” Id. In addition, the Eleventh

Circuit requires Plaintiffs to demonstrate “that there are other employees of the . . . employer

who desire to opt-in.” Dybach, 942 F.2d at 1567 (internal quotation marks omitted).

It is well-established that “[a]t the notice stage . . . , it is not appropriate for the Court

to address the merits of the Plaintiffs’ claims or weigh the evidence.” Scott v. Heartland

Home Fin., Inc., No. 05 Civ. 2812, 2006 WL 1209813, at *3 (N.D. Ga. May 3, 2006). Nor

do courts “resolve factual disputes or make credibility determinations” in deciding whether to

send notice. Russell v. Life Win, Inc., No. 11 Civ. 2802, 2014 WL 7877787, at *2 (M.D. Fla.

Apr. 23, 2014). So long as the pay provisions that are the subject of Plaintiffs’ claims are

similar, “[v]ariations in specific duties, job locations, working hours, or the availability of

various defenses . . . are not considered at [the notice] stage.” See Vondriska v. Premier

Mortg. Funding, Inc., 564 F. Supp. 2d 1330, 1335 (M.D. Fla. 2007) (internal quotation marks

omitted).

Citi can be expected to argue that this Court should follow Korenblum v. Citigroup,

Inc., No. 15 Civ. 3383, 2016 WL 3945692, at *4 (S.D.N.Y. July 19, 2016), which applied

what the court there deemed a “modest plus” standard at the notice stage because the parties

had already conducted some discovery on the propriety of conditional certification. Though

Korenblum is not binding here, and reflects a departure from the practice within its own


15

district,69 the Korenblum court itself explained that its approach extended only to encompass

the evidence before it, “with an understanding that the body of evidence is necessarily

incomplete.” Id. at *4 (internal quotation marks omitted). Thus, the Korenblum court

declined to “decide the ultimate merits of the case or issues better suited for a decertification

motion,” id., and refused to draw “negative inferences of any sort where evidence is lacking

because Plaintiffs may not have received discovery on the issue.” Id. Though Korenblum

does not reflect the standard articulated by decisions in this Circuit, to the extent that the

Court adopts the Korenblum approach here, the same limitations are appropriate. Resolving

factual disputes and making credibility determinations are unsuited at this stage of the

litigation, where there has been no evidentiary hearing and only limited discovery has been

conducted. See “Procedural History” supra; Czopek v. TBC Retail Grp., Inc., No. 14 Civ.

675, 2015 WL 4716230, at *5 (M.D. Fla. Aug. 7, 2015) (“This Court agrees that the evidence

presented by all parties should be considered carefully, but a careful review of the evidence

does not change the standard to be applied.”).

While the Court may consider the evidence adduced so far, it should not determine

whether HTWs “are in fact similarly situated,” Myers v. Hertz Corp., 624 F.3d 537, 555 (2d

Cir. 2010) (internal quotation marks omitted) – the second-stage determination – but only

69 See, e.g., Kucker v. Petco Animal Supplies Stores, Inc., No. 14 Civ. 9983, 2016 WL 237425, at *9 (S.D.N.Y. Jan. 19, 2016) (rejecting argument that a heightened standard should apply to 216(b) inquiry after some discovery was completed); Amador v. Morgan Stanley & Co. LLC, No. 11 Civ. 4326, 2013 WL 494020, at *4 (S.D.N.Y. Feb. 7, 2013) (“the overwhelming case law in this Circuit clearly holds that a heightened standard is not appropriate during the first stage of the conditional certification process and should only be applied once the entirety of discovery has been completed” (internal quotation marks omitted; emphasis in original)); Cunningham v. Elec. Data Sys. Corp., 754 F. Supp. 2d 638, 645-47 (S.D.N.Y. 2010) (rejecting heightened standard, and discussing cases questioning whether it is appropriate).


16

whether there is “a reasonable basis for [Plaintiffs’] claim that there are other similarly

situated employees.” Morgan, 551 F.3d at 1260 (internal quotation marks omitted). The

focus at this stage is not on whether there has been an actual violation of law, but on whether

the proposed plaintiffs are similarly situated with respect to their allegations that the law has

been violated. Kreher v. City of Atlanta, Ga., No. 04 Civ. 2651, 2006 WL 739572, at *4

(N.D. Ga. Mar. 20, 2006) (“[a]lthough lacking in some detail, Plaintiffs’ declarations

establish the existence of other employees employed in similar positions and subjected to

similar policies.”).

Under the notice standard, plaintiffs are not required to show that they hold identical

positions. Hipp, 252 F.3d at 1217; Grayson, 79 F.3d at 1096. Rather, plaintiffs may show

either (1) that their job positions and duties are similar to those positions held by the putative

class members, see Hipp, 252 F.3d at 1217; Grayson, 79 F.3d at 1096, or (2) that plaintiffs

and the putative class members were all subject to the same unified policy, plan, or scheme

that forms the basis of the alleged FLSA violation. See, e.g., Morgan, 551 F.3d at 1262-64

(upholding district court’s denial of employer’s motion to decertify and finding that “there is

nothing unfair about litigating a single corporate decision in a single collective action”);

Scott, 2006 WL 1209813, at *2 (holding that the notice stage requires only “substantial

allegations that the putative class members were together the victims of a single decision,

policy, or plan”).

B. Plaintiffs Are Similarly Situated with Respect to Their Allegations that Citi Is Their Joint Employer.

Plaintiffs and other HTWs are similarly situated with respect to their joint employer

allegations. To hold Citi liable for overtime violations, Plaintiffs must show (at the merits


17

stage, after discovery is complete) that Citi was Plaintiffs’ joint employer. See Lima v. Int’l

Catastrophe Solutions, Inc., 493 F. Supp. 2d 793, 799-800 (E.D. La. 2007) (authorizing

notice to workers hired by multiple staffing agencies, including non-parties, where plaintiffs

alleged that they were all jointly employed by a single entity).

To determine whether Citi jointly employed HTWs, the Court will be called upon (at

the merits stage) to consider the eight non-exclusive, overlapping factors set out in Antenor v.

D & S Farms, 88 F.3d 925, 932 (11th Cir. 1996).70 The Eleventh Circuit has cautioned that

in applying these factors, “a joint employment relationship is not determined by a

mathematical formula . . . . The purpose of weighing the factors is not to place each in either

the contractor or the [alleged employer’s] column, but to view them qualitatively to assess

the evidence of economic dependence, which may point to both.” Layton v. DHL Exp.

(USA), Inc., 686 F.3d 1172, 1178 (11th Cir. 2012) (quoting Antenor in applying factors to

FLSA claims). In recent guidance, the U.S. Department of Labor, citing Antenor

approvingly, agreed, explaining that under the FLSA, joint employment is “notably broader

than the common law concepts of employment and joint employment.” U.S. DOL,

Administrator’s Interpretation No. 2016-1 (Jan. 20, 2016) at 4.

Although a full analysis and ruling on joint employment should wait until the merits

stage of this litigation, the fact that Plaintiffs plausibly allege that Citi jointly employs

70 The Antenor factors are: “(1) the nature and degree of [Citi’s] control of the [HTWs]; (2) the degree of [Citi’s] supervision, direct or indirect, of the [HTWs’] work; (3) [Citi’s] right, directly or indirectly, to hire, fire, or modify the [HTWs’] employment conditions; (4) [Citi’s] power to determine the workers’ pay rates or methods of payment; (5) [Citi’s] preparation of payroll and payment of the workers’ wages; (6) [Citi’s] ownership of the facilities where the work occurred; (7) the [HTWs’] performance of a line-job integral to [Citi’s business operations]; and (8) [Citi’s] and labor contractor’s relative investment in equipment and facilities.” Id.


18

HTWs, regardless of the staffing agency supplying them, supports authorizing notice in this

case. See Jackson v. Fed. Nat'l Mortg. Ass’n, No. 15 Civ. 1411, 2016 WL 3098077, at *6

(N.D. Ga. Mar. 29, 2016) (stating, on motion for conditional certification, “[t]he Court

addresses [joint employment] first because Plaintiffs have only joined one of the eight

staffing agencies which purportedly were joint employers with Fannie Mae, and because

Fannie Mae’s status as a joint employer may be integral to the outcome of this case”).

Specifically, Plaintiffs allege that they went through the same centralized selection and

onboarding process regardless of staffing agency; worked at Citi’s direction under the direct

supervision of Citi managers; all worked in or reported in to Citi’s facilities; and performed

work that was the same as or similar to work done by full-time direct employees of Citi. See

SOF Part III-IV supra. Citi also moved Plaintiffs Gursky, Marlow, and Young from one

agency to another with no change in their job duties. See Statement of Facts (“SOF”) Part I,

nn. 9-10 supra. Most importantly, the fact that Citi imposed common billing and

timekeeping practices on all HTWs, regardless of staffing agency, see SOF Part IV-V, supra,

supports sending notice to all HTWs who were subjected to those practices.

Although Citi may attempt to identify differences between staffing agencies to show

that the joint employment inquiry will vary from one agency to another, those variations

should not defeat conditional certification. Plaintiffs do not seek a definitive ruling on joint

employment at this stage, and the Court has not authorized discovery on joint employment.

If Citi is correct that variations exist that could lead to different outcomes under the joint

employment analysis, the appropriate course is to address those contentions after merits

discovery has been completed, and – if justified by the evidence – decertify the claims of any


19

workers whom Citi did not jointly employ. See Jackson, 2016 WL 3098077, at *11 (“if

individual differences in how the vendors handled certain wage matters wind up being

material to the core policy at issue in this case, then Fannie Mae can move for

decertification”); Lima, 493 F. Supp. 2d at 800 (“If sufficient evidence is not developed to

demonstrate that the other subcontractors were not involved in the same alleged scheme or

practice, the Court may decertify the collective action as to those parties after sufficient

discovery is conducted.”); Kaluom v. Stolt Offshore, Inc., 474 F. Supp. 2d 866, 875 (S.D.

Tex. 2007) (“If Defendant can show that the Economics Reality Test [sic.] produces

significantly different results for different employers after discovery has been conducted

regarding the other employers, then Defendant should move for decertification at that

time.”).

C. Plaintiffs Have Satisfied their Low Burden To Show that HTWs Were Subject to A Common Policy that Violated the FLSA.

Plaintiffs here present more than the “rudimentary showing of commonality” required

to support conditional certification at this stage of litigation. Barron, 242 F. Supp. 2d at

1103. Plaintiffs’ evidence shows that Citi maintained a policy of capping the number of

work hours that HTWs were permitted to report in Fieldglass, resulting in unpaid overtime in

violation of the FLSA because the vendors only paid the workers for the time that they billed.

See SOF Part IV-V supra. Citi’s time reporting policy was consistent from one location to

another, from one Citi department to another, and from one staffing agency to another. See

SOF Part IV supra. This time reporting arrangement is analogous to similar off-the-clock

cases where the employer financially incentivized its managers to underpay workers. See

Bacon v. Subway Sandwiches & Salads LLC, No. 14 Civ. 192, 2015 WL 729632, at *1 (E.D.


20

Tenn. Feb. 19, 2015) (authorizing notice where plaintiffs alleged that managers altered time

records to reduce labor costs and qualify themselves for performance bonuses); Falcon v.

Starbucks Corp., 580 F. Supp. 2d 528, 533 (S.D. Tex. 2008) (authorizing notice based on

evidence that Store Managers’ bonuses depended, in part, on the number of labor hours the

managers utilized, thus incentivizing them to require off-the-clock work). Citi carried out a

similar practice by capping the number of hours it would pay its third-party staffing agencies

for HTWs’ work at 40 per week.71

Plaintiffs have met their burden to show that Citi’s alleged FLSA violation was a

common company practice. Courts regularly decline to reach the issue of whether an

allegedly unlawful employment policy was “the exception or the rule” at the conditional

certification stage. For example, in Earle v. Convergent Outsourcing, Inc., No. 12 Civ. 1050,

2013 WL 6252422 (M.D. Ala. Sept. 5, 2013), the defendant to a FLSA collective action

argued that only “a few rogue supervisors miscommunicated the proper methods for

recording hours worked.” Id. at *4-5. The court rejected this argument and certified the

collective, noting that defendants asked for “[too stringent] a showing for the first tier” of

certification. Id; see also Longcrier v. HL-A Co., 595 F. Supp. 2d 1218, 1239 (S.D. Ala.

2008) (certifying collective action despite defendant’s contentions that non-payment of

overtime was “isolated and sporadic”); Russell v. Illinois Bell Tel. Co., 575 F. Supp. 2d 930,

935 (N.D. Ill. 2008) (argument that a company had a “written overtime policy” that

71 To the extent Citi attempts to contrive a distinction that its practice to cap reported hours is for billing purposes is not a wage violation, the distinction is not supported by evidence. There is no evidence that any manager instructed HTWs that the 40-hour cap in Fieldglass was for billing only and that they were otherwise entitled to be paid for all hours worked. Furthermore, Citi supervisors’ repeated references to not paying HTWs for overtime betray their knowledge that staffing agencies paid HTWs according to Fieldglass. See SOF Part IV supra.


21

controlled over supposedly isolated policy violations was a “premature” defense “on the

merits”). Here, Plaintiffs identified instructions from multiple supervisors of HTWs

employed at different Citi facilities that prohibited putative class members from reporting

hours worked over 40, as well as an official communication from the head of Citi’s TSO that

Citi managers took to mean “contractors are no longer capped at 40 hour work weeks.” See

SOF Part IV supra. This evidence is sufficient to overcome any argument that Citi’s

violations were due to the allegedly “rogue” actions of one or two individuals. Jackson,

2016 WL 3098077, at *8-9.

1. The Possibility that Some Staffing Agencies May Have Paid Overtime Does Not Defeat Conditional Certification.

Citi will presumably argue that, even if the existence of a 40-hour cap is proven, there

is insufficient evidence that staffing agencies responded to that policy by refusing to pay

statutory overtime. That argument should not defeat conditional certification for two

reasons. First, whether or not each staffing agency paid its workers based on time billed

through Fieldglass can be easily determined by obtaining evidence, either from the opt-ins or

the staffing agencies, about how payment was made. That factual determination is best left

for the merits stage. See Vondriska, 564 F. Supp. 2d at 1335 (“the availability of various

defenses . . . are not considered at [the notice] stage.”). The court in Jackson v. Federal

National Mortgage Association rejected a similar argument when Fannie Mae argued that

notice should not issue because each staffing agency was “solely responsible, at its own cost”

for calculating overtime and wages. 2016 WL 3098077, at *11. The plaintiffs’ evidence that

some staffing agencies did, in fact, underpay the workers was sufficient in Jackson because,

“the vendors’ calculation and payment of wages entailed little more than filling in the answer


22

to a math equation that Fannie Mae wrote and provided all of the relevant variables for.” Id.

(internal quotation marks omitted).

Plaintiffs’ evidence is sufficient here as well. The record shows that all of the

Plaintiffs experienced similar violations, because all of their staffing conformed their pay to

the billed hours entered into Fieldglass. See SOF Part V supra. Citi may argue that the

collective is too large to generalize from the Plaintiffs’ experiences, but as explained above,

Citi’s billing practices create economic conditions that consistently lead to these outcomes.

As the court in Falcon explained, “[i]t simply cannot be that an employer may establish

policies that create strong incentives . . . to encourage or allow employees to work off-the-

clock, and avoid a FLSA collective action because a large number of employees at a number

of different [locations] are affected.” Falcon, 580 F. Supp. 2d at 539.

In Korenblum, the court declined to conditionally certify a collective of workers that

Citi (allegedly) jointly employed under a different billing arrangement because it deemed

plaintiffs’ showing of similarity insufficient as to non-party staffing agencies. 2016 WL

3945692, at *4. The Court should not follow Korenblum for two reasons. First, this case is

still at the notice stage, and only limited discovery has been conducted. As discussed in

“Procedural History,” supra, that discovery excluded discovery from non-party agencies,

including third-party subpoenas to a sample of staffing agencies. See ECF No. 146. Even if

the Court adopts the evidentiary standard that the Korenblum court purported to apply –

where no “negative inferences of any sort” should be drawn “where evidence is lacking

because Plaintiffs may not have received discovery on the issue,” 2016 WL 3945692, at *4 –

then the Court should not infer that agencies paid their workers overtime (at their own


23

personal cost, as shown in SOF Part V supra) where the agencies now before the Court are

proven to have paid no overtime.

Second, this Circuit’s standard requires that Plaintiffs show “a reasonable basis” to

claim that other HTWs are similarly situated. Morgan, 551 F.3d at 1260 (internal quotation

marks omitted). It is not reasonable to assume that staffing agencies, whose revenue depends

on charging more than they pay for HTWs’ work, would agree to the money-losing

proposition that they should bear the cost of overtime that Citi did not pay them for. Based

on the evidence before the Court, it is far more “reasonable to conclude that [Citi] may also

have engaged in these same practices with other subcontractors.” Lima, 493 F. Supp. 2d at

799-800. The Court can test that conclusion at the merits stage. See id.; Jackson, 2016 WL

3098077, at *11. Sending notice now will better serve the FLSA’s “broad remedial purpose”

than drawing premature conclusions about what full discovery will show. See Dybach, 942

F.2d at 1567.72

2. Variations in Job Duties Do Not Defeat Conditional Certification.

Citi may argue that HTWs performed different job duties, but this fact is not material

to Plaintiffs’ off-the-clock claims, which do not depend on the kind of work that they

performed. “If, as Plaintiffs have alleged and shown, they are all harmed by the same

company pay policies, then it is of no consequence whether their job duties are similar, what

kind of work they performed, why they worked off the clock, and the like.” Longcrier, 595

72 Korenblum also declined to conditionally certify a smaller collective extending only to the agencies that hired the workers who had already opted into that case. 2016 WL 3945692, at *5-8. Respectfully, Plaintiffs submit that the Korenblum court did so by drawing negative inferences and making evidentiary determinations that are inappropriate under even the “modest plus” standard that it purported to apply, much less the “lenient” standard that should apply here. See Czopek, 2015 WL 4716230, at *5. In any event, the factors that the Korenblum court relied on in making these determinations are not before this Court. See Korenblum, 2016 WL 3945692, at *5-8.


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F. Supp. 2d at 1239; see also Maudlin v. Johnny Kynard Logging, Inc., No. 08 Civ. 307,

2009 WL 455479, at *4 (S.D. Ala. Feb. 20, 2009) (despite holding different job titles, all

plaintiffs were subjected to the same unlawful deduction policy); Brown v. Maximum

Efficiency Squared, LLC, No. 07 Civ. 889, 2008 WL 1924983, at *2 (M.D. Ala. Apr. 30,

2008) (same). Variations in job duties would only affect the amount of hours worked, which

is a damages issue that should not preclude conditional certification. See Geter v. Galardi S.

Enters., Inc., No. 14 Civ. 21896, 2015 WL 2384068, at *3 (S.D. Fla. May 19, 2015) (finding,

even at second stage, that differences in damages are “irrelevant to the decertification

decision”).73

D. Other HTWs Wish to Join Plaintiffs’ Action.

To date, four HTWs have joined this action in addition to the two named Plaintiffs;

one other has expressed interest in joining, but was statutorily time-barred from doing so.

See SOF Part I supra. This is sufficient to show “that there are other employees of the

department-employer who desire to opt-in” to this case. Dybach, 942 F.2d at 1567 (internal

quotation marks omitted); see Ciani v. Talk of The Town Rests., Inc., No. 14 Civ. 2197, 2015

WL 226013, at *2 (M.D. Fla. Jan. 16, 2015) (two plaintiffs, plus two opt-in plaintiffs,

sufficient to demonstrate interest); Robbins-Pagel v. Puckett, No. 05 Civ. 1582, 2006 WL

3393706, at *2 (M.D. Fla. Nov. 22, 2006) (three affidavits, from plaintiff and two former

employees, found sufficient); Guerra v. Big Johnson Concrete Pumping, Inc., No. 05 Civ.

14237, 2006 WL 2290512, at *4 (S.D. Fla. May 17, 2006) (two affidavits sufficient); Tyler v. 73 To the extent that Citi argues that some HTWs may have no damages, that fact does not defeat conditional certification either, at least not at the notice stage. See Jackson, 2016 WL 3098077, at *10 n.15 (“that some class members may not have suffered damages . . . is immaterial at this early stage”). If some opt-ins are later determined to have worked no overtime, their claims can be decertified after the close of merits discovery.


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Payless Shoe Source, Inc., No. 05 Civ. 33, 2005 WL 3133763, at *3 (M.D. Ala. Nov. 23,

2005) (three to five consents to join sufficient); Pendlebury v. Starbucks Coffee Co., No. 04

Civ. 80521, 2005 WL 84500, at *3 (S.D. Fla. Jan. 3, 2005) (affidavits of two named plaintiffs

and four opt-ins sufficient).

Courts within the Eleventh Circuit have rejected the argument that Plaintiffs must

show more interest when the collective is larger, holding that it is inconsistent with the

“broad remedial purposes” of the FLSA. Kerce v. W. Telemarketing Corp., 575 F. Supp. 2d

1354, 1366 (S.D. Ga. 2008). While the exact size of this collective is still unknown, it is

unlikely to be larger than the one in Pendlebury, where a similar number of individuals

expressed interest. 2005 WL 84500, at *2 (collective consisted of “thousands” of store

managers).

E. Courts Do Not Weigh the Merits or Resolve Conflicting Evidence at the Notice Stage.

To the extent that Citi opposes this motion by arguing that some evidence conflicts

with Plaintiffs’ showing of similarity, that argument should be rejected because it would

require the Court to weigh evidence and make factual determinations. See Grayson, 79 F.3d

at 1099 n.17 (Defendant’s rebuttal evidence does not bar § 216(b) notice; plaintiffs’

substantial allegations need only successfully engage the employer’s evidence to the

contrary). Such considerations are left to the merits phase, when the record is complete. See

Russell, 2014 WL 7877787, at *2; Vondriska, 564 F. Supp. 2d at 1335. For example,

evidence suggesting that there was no “cap” on Plaintiffs’ hours is flatly contradicted by

Plaintiffs’ testimony and Fieldglass records, as well as internal emails that refer to such a

cap. See SOF Part IV supra. Resolving this factual dispute would require a full examination


26

of the evidence and possibly credibility determinations, neither of which can be done on the

record now before the Court.

The merits stage of this case will permit those determinations and others to be made.

During Phase II merits discovery, Plaintiffs propose to take further discovery to test Citi’s

contentions concerning its cap on reportable hours; to address whether Citi was a joint

employer of HTWs supplied by the various staffing agencies whose employees join the

action; and to establish, through a combination of electronic data (such as computer login

time and badge swipe data) and evidence provided by opt-ins, whether the opt-ins in fact

worked off the clock and to what extent. The scope of Phase II discovery would be guided

by which individuals opt in to the case, as only those claims would be properly before the

Court. Following this stage, the Court would be in a position to resolve factual disputes and

rule definitively on whether the members of the collective are in fact “similarly situated.”

III. Plaintiffs Have Satisfied Their Modest Burden to Support Notice to the Class.

A. Plaintiffs’ Notice is Fair and Adequate.

Plaintiffs propose a neutral and straightforward Notice that will inform HTWs of their

statutory opt-in rights. See Brooks Decl., Ex. 1 (“Proposed Notice”). The Proposed Notice

explains the nature of the action and makes clear that the Court has not adjudicated the merits

of the dispute. It also describes how HTWs can opt in, and attaches substantially the same

consent form that other HTWs have already used to join the lawsuit.74

74 Exhibit 2 to the Brooks Declaration is the Consent to Join form (“CTJ”), followed by a single page allowing opt-ins to provide their contact information so that it is included with their CTJs. Without that second page, some CTJs would likely be mailed without detailed, legible identifying information, thus impeding identification of opt-ins.


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B. Citi Should Be Directed to Produce a List of HTWs to Facilitate Notice.

Plaintiffs seek the Court’s authorization to disseminate the Proposed Notice to all

workers who were supplied to Citi through staffing agencies (including but not limited to

Judge), who were classified under the “Hourly” time template in Fieldglass, and either (1)

categorized under the “TS200” and “TS300” “commodity codes” in Fieldglass (as

“technology resources” whose employment with Citi was managed through Citi’s TSO) or

(2) were employed as AML Analysts, at any time between three years prior to the date of the

Court’s decision on this motion and March 1, 2016. See Stuven v. Texas de Brazil (Tampa)

Corp., No. 12 Civ. 1283, 2013 WL 610651, at *6 (M.D. Fla. Feb. 19, 2013) (Bucklew, J.)

(authorizing notice to all putative collective members who worked within three years prior to

order). Plaintiffs request leave to distribute the notice by mail and e-mail, and to send a

reminder notice75 by mail and email 30 days after the initial notice. See Plummer v. PJCF,

LLC, No. 15 Civ. 37, 2015 WL 2019380, at *4 (M.D. Fla. Apr. 30, 2015), on partial

reconsideration on other grounds, 2015 WL 2359996 (authorizing email notice); Brown v.

Discrete Wireless, Inc., No. 14 Civ. 1922, 2014 WL 6607006, at *3 (M.D. Fla. Nov. 19,

2014) (same); Stuven, 2013 WL 610651, at *6 (same, over defendant’s objections, and

authorizing reminder notice).

To facilitate dissemination of the Proposed Notice, Plaintiffs request that the Court

order Citi to produce a computer-readable list of HTWs’ names, last known mailing

addresses, last known telephone numbers, last known e-mail addresses, and work locations,

plus the last four digits of the Social Security numbers for any HTWs whose notices are 75 A reminder will help ensure that notice is effective, as it is well-documented that people often disregard collective action notices. See Andrew C. Brunsden, Hybrid Class Actions, Dual Certification, and Wage Law Enforcement in the Federal Courts, 29 Berkeley J. Emp. & Lab. L. 269, 295 (2008).


28

returned undeliverable. Courts routinely order Defendants to produce such information to

facilitate notice. See, e.g., Brown, 2014 WL 6607006, at *3; Plummer, 2015 WL 2019380, at

*4.

CONCLUSION

For the foregoing reasons, Plaintiffs respectfully ask the Court to (1) require Citi to

produce, within 21 business days of the Order, a computer-readable data file containing the

names, last known mailing addresses, last known telephone numbers, last known e-mail

addresses, and work locations for all HTWs, and the last four digits of the Social Security

numbers for any HTWs whose notices are returned undeliverable; and (2) authorize the

issuance of the Proposed Notice to all HTWs as defined above by U.S. Mail and e-mail and a

reminder notice during the opt-in period.

Dated: New York, New York October 27, 2016

Respectfully submitted,

/s/ Molly A. Brooks Molly A. Brooks

OUTTEN & GOLDEN LLP Adam T. Klein (admitted pro hac vice) Molly A. Brooks (admitted pro hac vice) Michael J. Scimone (admitted pro hac vice) Olivia J. Quinto (admitted pro hac vice)

685 Third Avenue, 25th Floor New York, NY 10017 Telephone: (212) 245-1000

STEPHAN ZOURAS, LLP Ryan F. Stephan (admitted pro hac vice)James B. Zouras (admitted pro hac vice)Teresa M. Becvar (admitted pro hac vice)


29

205 North Michigan Avenue, Suite 2560 Chicago, IL 60601 Telephone: (312) 233-1550

David J. Cohen (admitted pro hac vice)604 Spruce Street Philadelphia, PA 19106 Telephone: (215) 873-4836

BURR & SMITH, LLP Sam J. Smith Loren B. Donnell 111 2nd Ave. NE, Ste. 1100 St. Petersburg, FL 33701 Telephone: (813) 253-2010

Attorneys for Plaintiffs and the Putative Collective


UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

CAROLINE ALANA LEWIS-GURSKY, and RUBEN CHEZ, on behalf of themselves and all others similarly situated,

Plaintiffs,

v.

CITIGROUP, INC., and JUDGE TECHNICAL SERVICES, INC.

Defendants.

Case No. 15 Civ. 2887

CERTIFICATE OF SERVICE

I hereby certify that on October 27, 2016, I electronically filed the foregoing, Plaintiffs’ Motion

for Court-Authorized Notice Pursuant to 29 U.S.C. § 216(b) and supporting Declaration of Molly A.

Brooks and supporting exhibits, with the Clerk of the Court by using the CM/ECF system, which sent

notification of such filing to the following: Adam T. Klein, Catherine T. Mitchell, Christopher

McNerney, David J. Cohen, James B. Zouras, Michael J. Scimone, Olivia J. Quinto, Ryan F. Stephan,

Teresa Becvar, Loren B. Donnell, Sam J. Smith, counsel for the Plaintiffs; and Courtney W. Griffin,

Derek J. Dilberian, Michael J. Puma, Samuel S. Shaulson, counsel for the Defendants. I hereby certify

that there are no non-CM/ECF participants in this matter.

Dated: October 27, 2016 New York, New York By: /s/ Molly A. Brooks

Molly A. Brooks

OUTTEN & GOLDEN LLP Molly A. Brooks (admitted pro hac vice)685 Third Avenue, 25th Floor New York, NY 10017 Tel: (212) 245-1000 Fax: (646) 509-2060


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