Mikityuk v. Cision US Inc.

Background

Anatoliy Mikityuk, Mitch Tallungan, and Michael Esquibel sued Cision US Inc. and Cision Ltd. under the Fair Labor Standards Act (FLSA), claiming that they and other sales representatives worked more than 40 hours in a workweek without receiving proper overtime compensation. They also asserted state wage-law claims under Federal Rule of Civil Procedure 23.

The plaintiffs worked in Cision offices in New York, Chicago, and Beltsville, Maryland. They alleged that sales representatives performed similar sales-related work, faced productivity requirements that were difficult to meet within 40 hours, and were not paid for all overtime. They further alleged that Cision failed to maintain accurate records and followed a policy or practice that minimized overtime costs.

The plaintiffs submitted 22 declarations from sales representatives in the three offices. The declarations generally stated that employees worked overtime, did not record all of their hours, and did not receive overtime pay. Cision submitted declarations stating that non-exempt employees were required to record all hours, including overtime, and disputing whether some employees worked late or were discouraged from reporting overtime.

Conditional certification standard

Under Section 216(b) of the FLSA, employees may join an action with other employees who are similarly situated. At the first stage of the process, plaintiffs need only make a modest factual showing that they and potential opt-in plaintiffs were victims of a common policy or plan that violated the law. This is a preliminary standard, lower than the standard for a class action under Rule 23. After discovery, the court may decide whether the workers who joined are actually similarly situated and may decertify the collective if they are not.

Nationwide notice

The plaintiffs sought notice to sales representatives at Cision offices throughout the United States. Cision did not oppose notice generally, but argued that the collective should be limited to the New York, Chicago, and Beltsville offices because the plaintiffs had submitted evidence concerning only those locations.

The court granted nationwide conditional certification. It reasoned that the plaintiffs’ evidence was sufficient at this preliminary stage to support an inference that the alleged violations arose from a nationwide practice that pressured managers and non-exempt employees to underreport or not report overtime. The court stated that further discovery could show that the managers acted independently or that the alleged practice was not nationwide; if so, Cision could later seek decertification.

The court limited the notice to employees who held one of 17 specific sales job titles. It rejected the proposed phrase “other similar roles, however variously titled” because that language was too vague to tell workers whether they were potential members of the collective or to tell Cision whose identifying information it should provide.

Notice and distribution

The court directed revisions to the proposed notice. Among other things, the notice was to identify both defendants, state that additional opt-in plaintiffs had joined without stating that they came from additional states, explain possible discovery and trial obligations, disclose that participants would be bound by favorable or unfavorable rulings or settlements, identify the right to choose counsel or proceed without counsel, state that Cision denied the allegations, and explain that the court had not decided who was right.

The notice could say once, in capital letters, that it was court-authorized, but it also had to state that it was not a solicitation. The court approved a limited statement that federal law prohibits retaliation for participating in the lawsuit and required language concerning the potentially applicable two-year limitations period.

The court approved distribution by mail and email but rejected text-message distribution because the plaintiffs had not shown that text messaging was necessary or appropriate. The court also permitted a reminder postcard if the plaintiffs’ counsel first conferred with Cision and submitted the proposed language for court approval. The reminder had to state that the court neither encouraged nor discouraged participation.

Consent forms

The court struck language concerning representation in separate or later actions. It declined to require potential opt-in plaintiffs to certify on the consent form that they were eligible to join or had worked more than 40 hours without overtime pay, explaining that the consent form was not a discovery device. Cision could investigate those issues later through discovery.

The court also rejected additional language proposed by Cision concerning litigation strategies and amendments to the complaint. It ruled that the form only needed to state that the plaintiffs’ counsel would represent people who opted in and did not have their own counsel.

The court required opt-in plaintiffs to send their consent forms directly to the Clerk of Court rather than to the plaintiffs’ lawyers. It reasoned that the FLSA treats the action as commenced when the written consent is filed with the court, making the filing date important to the limitations period.

Disposition

The court granted the plaintiffs’ motion for Section 216(b) notice, subject to the stated modifications. It granted the request for a reminder notice, subject to meet-and-confer and court-approval conditions. The plaintiffs had to submit revised notice and consent forms within two weeks. The ruling was conditional and addressed the procedure for notifying potential opt-in plaintiffs; it did not decide the ultimate merits of the overtime claims.