Hernandez v. Dutton Ranch Corporation

Background

Omar Hernandez and Antonio Hernandez Santiago brought wage-and-hour claims against Dutton Ranch Corporation. The case began in state court in December 2018 and was later removed to federal court by Dutton. The operative second amended complaint includes a claim under the Fair Labor Standards Act (FLSA), and Omar Hernandez is the only named plaintiff for that claim.

Omar Hernandez sought preliminary certification of an FLSA collective action and asked the court to facilitate notice to workers who might want to join. The court held a hearing on March 12, 2020, and issued this order to record its oral rulings and provide additional analysis.

Preliminary certification

Under the FLSA, employees may litigate together when they claim an FLSA violation, are similarly situated, and affirmatively opt in to the case in writing. The Ninth Circuit describes preliminary, or conditional, certification as an early stage of that process. At this stage, the court generally reviews the pleadings and may consider declarations or other evidence under a lenient standard similar to asking whether the proposed group is plausible.

Preliminary certification does not create a class with separate legal status or automatically add workers as parties. Its main consequence is that the court-approved notice can be sent to workers who may choose to join the litigation as individuals.

The court found that Omar Hernandez satisfied this standard. His allegations and supporting declarations described alleged common practices affecting Dutton field workers, including not paying expenses connected with H-2A visas, requiring workers to arrive 10 to 15 minutes early for preparation, requiring them to work 10 to 15 minutes after the scheduled end time for cleanup, requiring them to pay for tools, and requiring them to pay for transportation from Dutton housing to work sites. The factual support came from Omar Hernandez’s personal observations and those of at least one other former employee, identified as Mr. Osbaldo.

The court rejected Dutton’s argument that more evidence was required at this stage. It also rejected the argument that differences among crews, tasks, tools, work sites, and supervisors defeated certification. The court stated that such differences would not prevent preliminary certification if a common policy or practice was plausible. The court overruled Dutton’s objection to portions of the declarants’ testimony.

The proposed collective was limited to field workers. The opinion described the proposed group as farmworkers who worked for Dutton Ranch in California during the specified notice period with H-2A work visas. The order noted that the claim was not being extended to mechanics, tractor drivers, or managerial staff based on the representations made in the motion papers.

Notice instructions

Because preliminary certification was warranted, the court concluded that notice to the proposed collective was proper. The parties had not yet agreed on how to send the notice, so the court directed them to meet and confer on the following points:

- A third-party administrator would send the notice, and the parties would select that administrator. Dutton agreed to pay the administrator’s notice-related cost. - Direct mail would be one method of notice, but the administrator should consider text messages, an application such as WhatsApp, and social media such as Facebook. The court noted that mail might not effectively reach all potential members, some of whom were in rural Mexico. - Posting notices at Dutton facilities did not appear necessary at that point unless other methods proved ineffective. - Potential collective members would have four months to opt in. - The notice would not have a header referring to the court, although it could say that the notice was issued as part of a case pending before the court. - The notice would include contact information for both plaintiffs’ counsel and Dutton’s counsel and clearly explain whom each side represented. - The parties would meet and confer about including Dutton’s position that it denied the claims and about clarifying what happens if a worker does not join the case. - The notice did not need to warn that workers could be assessed costs if they lost because plaintiffs’ counsel stated on the record that they would cover taxable costs. The court found the possibility of nontaxable costs insufficient to require a warning. - The notice should explain that workers who join have obligations to participate and provide relevant information, including possible deposition obligations.

The parties were ordered to meet and confer and submit a joint proposed notice by March 26, 2020. If they could not agree, they were required to identify the disputed issues and provide each side’s position and proposed language.

Ruling and effect

Judge Edward M. Chen granted Omar Hernandez’s motion for preliminary certification and to facilitate collective-action notice. The order disposed of Docket No. 30. It did not determine whether Dutton violated the FLSA or resolve the claims on their merits. The order also stated that Dutton could later argue that the collective should be subject to a two-year, rather than a broader, limitations period because willfulness was difficult to assess at the early stage.