Myers v. Gilead Sciences, Inc.

Background

Plaintiffs Amelia Myers and Fatoumata Barry Yapo asked the Court to authorize notice to a proposed Fair Labor Standards Act (FLSA) collective. An FLSA collective allows workers with similar wage claims to join one lawsuit by affirmatively opting in.

The plaintiffs alleged that the defendants had a common policy of failing to include supplemental compensation in the regular-rate calculation used to determine overtime pay. They relied on their declarations, a Gilead website page, job postings, an Securities and Exchange Commission incentive-plan summary, and sample earnings statements. The plaintiffs stated that they were hourly, non-exempt employees, received restricted stock units that vested during the relevant period, and worked overtime.

The proposed collective initially covered people who worked for Gilead as non-exempt employees, received incentive awards or grants, and worked during the period beginning May 3, 2021. The defendants opposed conditional certification and notice, arguing that the plaintiffs had not met their evidentiary burden, that some potential members had arbitration agreements, that the proposed definition was vague and overbroad, and that the proposed notice and distribution plan contained defects.

Legal standard

At the notice stage, the Court applied the FLSA requirement that collective members claim an FLSA violation, be similarly situated, and opt in in writing. The similarly situated requirement asks whether the workers are alike in a material legal or factual way that matters to resolving their claims. The standard at this stage is lenient, but plaintiffs must provide at least some evidence supporting their allegations that the workers were affected by a common decision, policy, or plan.

The Court emphasized that the notice-stage inquiry does not resolve factual disputes or decide the ultimate merits of the wage claims.

Conditional certification

The Court found that the plaintiffs’ declarations and supporting documents were sufficient to show, at this preliminary stage, similar job duties and a similar compensation scheme. The declarations stated that Myers and Yapo worked more than 40 hours in a workweek during which they had received incentive awards and that the defendants’ policy omitted bonuses and restricted stock units from overtime calculations. The other materials supported the existence of company-wide incentive compensation.

The Court rejected the defendants’ argument that the plaintiffs’ declarations were too repetitive or speculative. It also rejected the argument that arbitration agreements prevented conditional certification. The Court stated that potential arbitration defenses did not defeat the showing of a common policy at the notice stage and that the enforceability of those agreements was better addressed later. The Court noted that the defendants alleged that 241 of 1,771 potential members were subject to arbitration agreements.

The Court concluded that the proposed definition could be narrowed. It conditionally certified this modified collective, subject to possible changes by agreement of the parties:

- All persons who worked for Gilead or Kite as overtime-eligible employees and either received a restricted stock unit award that vested after May 3, 2021, and recorded more than 40 hours in at least one workweek between the award date and vesting date; or received an incentive award after May 3, 2021, and recorded more than 40 hours in at least one workweek during a period in which the award was earned.

Notice and distribution

The Court authorized the plaintiffs to send notice and consent-to-join forms by mail, email, and text message. It also authorized reminder notices by postcard, email, and text message halfway through the 90-day opt-in period. The Court allowed a QR code directing recipients to a website containing only Court-approved information and a way to download and submit consent-to-join forms.

The Court did not require the notice to include the defendants’ proposed statements about possible depositions, testimony, or responsibility for costs. The Court ordered modifications addressing references to Gilead and Kite and allowed the notice to state that it summarizes the conditional-certification decision. The Court also allowed the notice to state that people who do not opt in will not be able to participate in or share in monetary recovery obtained in the case, because the state-law claims had been stayed.

The defendants were ordered to provide a third-party administrator, in a format that could be manipulated as data, the names, last known mailing addresses, last known telephone numbers, and last known personal email addresses of all potential collective members within 21 days. The Court did not require production of work locations, employment dates, or the last four digits of Social Security numbers. The Court also denied the plaintiffs’ request that the information be sent both to them and to the third-party administrator; the defendants were ordered to provide one list to the administrator.

Disposition

The Court granted the plaintiffs’ motion for notice to the collective, with the modifications discussed in the order. The plaintiffs were required to provide the defendants with the modified notice by March 27, 2025. If the parties disagreed about the modifications, they were required to meet and confer and, if necessary, file a joint letter by April 10, 2025. The order authorized notice and conditional certification at the preliminary stage; it did not decide the ultimate merits of the overtime claims.