Clausnitzer v. Federal Express Corp.

ORDER ON MOTION FOR CLASS CERTIFICATION

THIS CAUSE came before the Court for hearing on January 17, 2008, upon Plaintiffs’ Motion for Class Certification (“Motion”) [D.E. 56-1]. Plaintiffs move for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. The undersigned has carefully considered the parties’ written submissions, oral arguments by counsel, and pertinent portions of the record, and is persuaded that this case is not appropriate for class treatment.

I. BACKGROUND

A. Plaintiffs’ Claims

Plaintiffs, a group of hourly employees of Federal Express Corporation (“FedEx”), brought the instant action against FedEx alleging the company engaged in a pervasive and long-standing policy of failing to pay hourly employees for all time worked. (See Amend. Compl. [D.E. 30] at ¶ 42). Plaintiffs style their suit as a class action and purport to represent a class of individuals consisting of hourly, non-exempt FedEx employees employed in every state and the District of Columbia, with the exclusion of California.1 (See id. at ¶ 23). The proposed class *649includes all such employees whose claims are not barred by the applicable statutes of limitations. (See id.).

Plaintiffs allege two causes of action: (1) breach of contract for non-payment of wages owed; and (2) a claim in quantum meruit for services rendered. (See id. at ¶¶ 48-60). Class certification is sought only with respect to the claim for breach of contract. (See Transcript of Jan. 17 Oral Argument (“Oral Argument”) [D.E. 73] at 23-25). According to Plaintiffs, FedEx breached its contractual obligation to compensate them by failing to pay for three categories of time worked: (1) time worked between arriving at a FedEx facility and the scheduled start time; (2) time worked between the scheduled stop time and leaving a FedEx facility; and (3) time worked during unpaid breaks. (See Amend. Compl. at ¶ 28; Motion at 3).

B. The Factual Record Developed for Class Certification

1. Employment Relationship Between Plaintiffs and FedEx

Plaintiffs assert that the employment relationship existing between the parties arises from an express contract. (See Amend. Compl. at ¶ 49; Motion at 3; Reply in Support of Motion for Class Certification (“Reply”) [D.E. 66-1] at 2-3). They claim the contract is embodied in several documents, including a signed employment agreement and a FedEx employment manual.

Each potential member of the class signed an employment agreement upon beginning the employment application process with FedEx. (See, e.g., Employment Agreements, Affidavit of Andre E. Jardini (“Jardini Aff.”) Exh. 48 [D.E. 56-26]). The main purpose of these agreements was to protect FedEx during the process of vetting potential employees. (See id.). Every employment agreement contains a clause specifying that the nature of the employment relationship between FedEx and the employee is at-will. (See id. at 626-41). There were a number of different versions of the employment agreement signed by employees over the years; most material terms were consis-

tent, but some agreements included provisions regarding alternative dispute resolution procedures and a clause specifying a 6-month limitations period on filing suit. (See id. at 626, 628-29).

FedEx also provided employees copies, or gave them access to, various company employment manuals, including an “Employment Handbook” and a “People Manual.” Both the Employment Handbook and the People Manual explicitly disclaim that their respective terms create contractual rights. (See Jardini Aff. Exh. 47 [D.E. 56-24] at 576; Declaration of Leila Hassan (“Hassan Decl”) Exh. 3 [D.E. 61-3]). Employees also signed a receipt accompanying the Employee Handbook acknowledging that the Handbook does not create a contract. (See, e.g., Exh. 5 to Clausnitzer Dep., Hassan Decl. Exh. 18 [D.E. 61-6]). Section 3-92 of both the Employee Handbook and the People Manual states, “[i]t is the policy of FedEx Express to compensate employees for all time worked in accordance with applicable state and federal laws.” (See Jardini Aff. Exh. 47 at 591, Exh. 55 [D.E. 56-29] at 743). In the People Manual, the following sentence states, “[e]xeept for certain approved preliminary and post-liminary activities, no employee should perform work ‘off the clock’ for any reason, whether on their own initiative or at the request of management.” (See Jardini Aff. Exh. 55 at 743).

In their Motion, Plaintiffs assert their relationship with FedEx is governed by “a written employment contract, consisting of the written employment application ... and the FedEx Employee Handbook.” (Motion at 3). In their Reply, however, Plaintiffs apparently abandon the notion that the Employee Handbook is the operative embodiment of the alleged contracts, and instead assert that the People Manual creates the contractual obligation. (See Reply at 3). In support of the alleged obligation, Plaintiffs point to the deposition of FedEx employee Paula Presno-polus in which she testified that “[t]he policy clearly states that FedEx will compensate employees for time worked.” (Jardini Aff. Exh. 63 [D.E. 66-8] at 886-87). Plaintiffs assert FedEx breached Section 3-92 of the *650People Manual by failing to pay for all time worked. Plaintiffs argue their claim is viable under the contract law of the fifty jurisdictions covered by their proposed class, because to the extent necessary for them to establish their claim, the law is essentially the same.2 (See Motion at 5-6; Reply at 9).

FedEx disputes that an express contractual relationship between it and the Plaintiff employees exists. (See Memo, in Opposition (“Opposition”) [D.E. 61-1] at 3-4). Instead, FedEx maintains that Plaintiffs are employed at-will, and the employment agreements and provisions of the Employee Handbook and People Manual relied on by Plaintiffs do not create contractually enforceable obligations. (See id.). The company also argues that the contract law of the covered jurisdictions includes many important distinctions resulting in individual inquiries that will swamp the adjudication of this case as a class action. (See id. at 7-9).

2. FedEx’s Monitoring of Employees’ Time

Plaintiffs’ ability to show the viability of their claim hinges on evidence produced from FedEx’s systems of recording employees’ time. FedEx maintained two primary systems for tracking employees’ activities and documenting time.3 (See Motion at 3; Opposition at 2-3). First, FedEx recorded time electronically by requiring employees to use electronic devices known as Trackers, Super-Trackers, and PowerPads (collectively “Tracker[s]”). (See Opposition at 2). During the day or at the end of the day, employees manually entered task codes into the Tracker to correspond to activities performed at a given time. (See id; Decl. of R. Carlson, Hassan Decl. Exh. 11 [D.E. 61-5] at ¶¶ 6-7). These manually entered work codes documented when the employee began work, started and finished a break, and ended work for the day. (See id.). The information was later transmitted to the FedEx employee time database (“FAMIS”) and used by the payroll department to process paychecks. (See id.).

Because employees controlled the manual entry of work codes into the Tracker and because these entries were not automatically time stamped, FedEx states that the data contained in the FAMIS system did not always accurately reflect a particular employee’s activities at a specific moment during the day.4 (See Opposition at 3 n. 5, 17; Oral Argument at 48-49). Trackers were also used by employees to record stops and scan packages at pick-ups and deliveries. FedEx compiled the data to improve the efficiency of deliveries, track packages, and ensure that customers received packages on schedule. (See Motion at 9; Opposition at 2).

The second method of controlling employees’ time was through a traditional punch clock system. (See Motion at 9; Opposition at 3). FedEx required employees to punch a card through a time clock when arriving at the FedEx facility and when leaving the facility at the end of the work day. (See id). Employees sometimes arrived at the FedEx facility and punched their cards before the scheduled start time, and likewise left the facility and punched the cards after their scheduled end time.5 (See Motion at 3; Opposition at 3). Employees were only compensated, however, for the time between the scheduled starting and ending times, which *651did not necessarily coincide with the manual punch-in and punch-out times. (See Motion at 3).

3. Work Occurring During Gap Periods

According to Plaintiffs, it was FedEx’s corporate policy that employees were required to perform certain work functions during the “gap periods” between punching in and the scheduled start time, and between the scheduled end time and punching out for the day. (See id.). Thus, Plaintiffs assert that employees were required to perform work during time periods when they were not being paid. (See id.; Jardini Aff. at ¶¶53, 57 (citing declarations and depositions)). The activities allegedly performed during these unpaid periods vary according to the job function of the particular employee and include gathering equipment and supplies, finishing paperwork, and completing closing procedures. (See Motion at 9-10). Plaintiffs offer their own declarations and depositions and the deposition testimony of other employees for the proposition that work was performed during these gap periods. (See Jardini Aff Exh. 1-6 [D.E. 56-15]; Jardini Aff at ¶¶ 53, 57 (citing declarations and depositions)).

For example, Plaintiff, Ronald Clausnitzer, is employed as a courier, and he stated that during the beginning of shift gap periods he gathered equipment and prepared to work on his route. (See Decl. of R. Clausnitzer, Jardini Aff. Exh. 1 [D.E. 56-15] at ¶ 7). According to Clausnitzer, during the end of a day gap period, “additional day’s end duties were frequently performed.” (Id. at ¶ 10). Service agent Dawn Robertson stated that in the fifteen minutes between punching in and her scheduled start time, she typically “set up the service center ... reviewed hold packages ... [and got] the bags ready.” (Decl. of D. Robertson, Jardini Aff. Exh. 35 [D.E. 56-22] at ¶ 4). Robertson was “told to finish the day’s end duties on [her] own time, therefore unpaid.” (Id. at ¶ 2).

Plaintiffs have also submitted the affidavits of statistician, Dr. Richard Drogin, who reviewed and analyzed a sample of employee time data obtained from FedEx. (See Aff. of R. Drogin (“Drogin Aff”) [D.E. 56-3]; Suppl. Aff. of R. Drogin [D.E. 66-2]). Dr. Drogin’s study compared employee time records from the FAMIS database to the time records recorded by manual punch cards. He found that, on average, each employee’s records reflected an 8.1 minute gap period each day. (See Drogin Aff. ¶ 6). Plaintiffs claim all gap periods of every class member constitute unpaid work. (See Motion at 11).

The record does not contain any evidence of an explicit FedEx policy requiring employees to work during gap periods. To the contrary, FedEx’s policies explicitly prohibited employees from performing work off-the-clock. (See People Manual, Jardini Aff. Exh. 55 at 743). FedEx states that the punch-in and punch-out times reflected by the manual records have no bearing on the actual time worked by employees. (See Opposition at 3). FedEx explains that it was the published policy of the company (understood by employees) that manual punch times did not correspond to the time for which employees would receive compensation. (See id. (citing depositions)). The company points to depositions and declarations of employees, including some of the representative Plaintiffs, for the proposition that the gap periods were employees’ personal time. (See id. at 3, 20-21).

FedEx notes that there were many individualized reasons unrelated to the completion of work why employees may have arrived at the facility before the scheduled start time or left the facility after the scheduled end time. (See id. at 3, 20; Oral Argument at 50-21). For example, courier Christine DeMartini stated that she sometimes arrived at work early because of “traffic patterns” or depending on when she dropped her child off at school. (See Decl. of C. DeMartini, Hassan Decl. Exh. 22 [D.E. 61-7] at ¶ 7). DeMartini stated that during the period between arriving and her scheduled start time she “may use the restroom or otherwise just get ready to start [her] work day,” and she did not expect to “be paid for this time because [she was] not working.” (Id.). Similarly, courier Steve Lake testified that he typically arrived ten minutes before his starting time because he “didn’t like to rush.” (Dep. of S. Lake, *652Hassan Decl. Exh. 44 [D.E. 61-11] at 24). During that time he would “talk to people and have a cup of coffee and relax.” (Id.).

Furthermore, FedEx contends, and certain Plaintiffs have confirmed, there was never a requirement that employees arrive early and punch their time cards before the scheduled start time. (See Opposition at 3 (citing Request for Admissions, Hassan Decl. Exh. 19 [D.E. 61-6] at ¶¶ 44-45)). With respect to the end of day gap periods, FedEx cites to similar individual reasons developed through employees’ declarations and depositions. (See Opposition at 21). Courier Cesar Oya-gue stated that during the end of day gap period he “may stop to talk to coworkers” but did not “expect to be paid for this time because [he was] not working.” (Decl. of C. Oyague, Hassan Decl. Exh. 55 [D.E. 61-12] at ¶ 9).

FedEx’s expert, Dr. Michael P. Ward, conducted a study similar to Dr. Drogin’s and found that the statistics provided by Dr. Drogin disproportionately reflect the long gap periods of a concentrated group of employees. (See Opposition at 17-18; Decl. of M. Ward (“Ward Decl”), Hassan Decl. Exh. 69C [D.E. 61-16] at ¶¶ 11-13). Regarding beginning of shift gaps, Dr. Ward found that the median gap period of the data sample was 4 minutes, while the average was 9 minutes; and with respect to the end of shift gap period, the median was 0 minutes and the average was 2.7 minutes. (See Ward Decl. at ¶¶ 11-12). Dr. Ward concluded that Dr. Drogin’s average “is not an informative statistic because it masks the large difference between morning and evening and because it is greatly influenced by a relatively small number of cases where the [gap period] is inexplicably long.” (Id. at 13).

4. Work Occurring During Unpaid Breaks

As mentioned, employees recorded break periods by entering the appropriate task codes into the Tracker device. Until recently, an employee was able to scan packages and enter other codes during the time period when the Tracker was in the break task code. (See Oral Argument at 52-53). It was possible for FedEx management to compare a report of break times with a report indicating scans to discover whether employees were scanning packages and making stops during their breaks. (See Opposition at 14). FedEx did not regularly undertake this comparison, instead relying on employees to inform managers if it became necessary to work during a break. (See id.).

Plaintiffs assert that working during breaks was a regular occurrence at FedEx. (See Motion at 3). They state that by comparing the various reports the company was able to discover that employees were working during breaks, and thus FedEx had knowledge of the work, approved it, and permitted it to continue. (See id. at 11). Plaintiffs submit declarations and depositions of various employees indicating they regularly worked during breaks. (See Jardini Aff. at ¶¶ 150, 152-53, 155-56, 159 (citing declarations and depositions)). To prove the frequency of this work, Plaintiffs again offer the study of Dr. Drogin. (See Motion at 2). Dr. Drogin’s analysis compared a sample of time records from the FAMIS database with records of package and stop scans and concluded that 17.6% of unpaid breaks were interrupted by scans.6 (See id.; Drogin Aff. at ¶ 7).

FedEx argues that employees were explicitly told not to work during unpaid breaks and cites documentation of this policy. (See Employee Handbook, Jardini Aff. Exh. 47 at 591). The company also points to statements of employees and named Plaintiffs indicating they did not work during unpaid breaks and that they understood the company policy prohibited such work. (See Opposition at 4-5 (citing depositions of plaintiffs Bost and Ortiz)). For example, Plaintiff Frederick Ortiz testified he did not work during unpaid lunch breaks. (See Dep. of F. Ortiz, Hassan Decl. Exh. 54 [D.E. 61-12] at 26). Plaintiff Anthony Bost testified he did not work during breaks out of a concern that he might “get hurt.” (See Dep. of A Bost, Hassan Decl. Exh. 9 [D.E. 61-4] at 113-14). He stated, “I *653do it right. When I’m off ... I don’t do anything.” (Id.)

With respect to the statistical data, FedEx contends that Dr. Drogin’s study fails to take into account several factors that significantly reduce the number of interrupted breaks. (See Opposition at 16). Dr. Ward’s study yielded a 9.4% interruption rate after excluding interrupting scans occurring in the first and last minute of the break period and also found that the group of employees in the top 10% in terms of frequency of interrupted breaks accounted for 47.7% of all interrupted breaks. (See Ward Decl. at ¶¶ 16, 23). Furthermore, Dr. Ward noted that the named Plaintiffs for whom records were analyzed have “nominal rates of scans [during breaks] ranging from 1.3% to 2.4%.” (Opposition at 17). The records of Plaintiff Ortiz, however, who testified he never worked during breaks, actually show the highest instance of interrupting events among the named Plaintiffs. (See id.). FedEx postulates that the FAMIS records could inaccurately reflect the exact times when breaks occurred because employees input break codes into the system at the end of the day and may have inadvertently created an overlap between a scan and break time. (See id.; Oral Argument at 57-58).

5. Certification of Class in California State Court

A similar lawsuit was filed in California state court in 2002. See Foster v. FedEx, Case No. BC 282300 (Cal.Sup.Ct.) (“Foster”). The Foster case was based on facts essentially identical to those at issue here, and much of the evidence is similar, if not the same. Class counsel in Foster represents Plaintiffs in the instant case and repeatedly offers the Foster decision to support certification here. The Foster plaintiffs asserted claims for (1) nonpayment of wages in violation of the California Labor Code, and (2) violations of the California Unfair Business Practices statute. (See Foster Compl., Jardini Aff. Exh. 7 [D.E. 56-15] at ¶¶ 25-43). The court certified a state-wide class of California employees paid on an hourly basis between October 15, 1998 and the current date.7 (See Foster Ruling on Motion for Class Certification, (“Foster Ruling”) Jardini Aff. Exh. 8 [D.E. 56-15]).

While the California court’s decision to certify in Foster is not irrelevant to the class certification analysis here, there are important and countervailing distinctions between Foster and the instant case. The claims in Foster arose under the wage and hour and unfair practices laws of California, whereas here, Plaintiffs assert their claim under the contract law of fifty separate jurisdictions. Thus, in Foster there was no danger of individual inquiries into the law of multiple jurisdictions overshadowing common questions.

There were also relevant facts pertinent to the claims relied on by the court in Foster that are inapposite to Plaintiffs’ claims in this case. Specifically, the Foster court appears to have based its finding of commonality, in part, on evidence that FedEx managers altered employees’ time records: “If a trier of fact determines that [FedEx] arbitrarily deducted time and/or altered the FAMIS to insert unpaid breaks then liability to one employee would also apply to every employee within the class. Whether or not the employee was actually damages [sic] would be an individual issue.” (Foster Ruling at 10). Plaintiffs have not alleged that FedEx intentionally altered time records. Even if they had, the undersigned is not persuaded by the Foster court’s expansive view of commonality and its willingness to consider individual damages issues for a class consisting of thousands of members based on an alleged violation as to only one member.

II. CLASS CERTIFICATION ANALYSIS

“Questions concerning class certification are left to the sound discretion of the district court,” Cooper v. Southern Co., 390 F.3d 695, 711 (11th Cir.2004) (citing Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1386 (11th Cir.1998)). With this “great power comes great responsibility; the awesome power of a district court must be ‘exercised within the framework of [Federal Rule of Civil Procedure] 23.’” Klay v. Humana, Inc., 382 F.3d 1241, 1251 (11th Cir.2004) (quoting Castano v. Am. Tobacco Co., 84 F.3d 734, 740 (5th Cir.1996)).

*654A plaintiff seeking certification of a claim for class treatment must propose an adequately defined class that satisfies the requirements of Rule 23, Federal Rules of Civil Procedure. These requirements are frequently denominated ‘“the prerequisites of numerosity, commonality, typicality and adequacy of representation,’ and they are designed to limit class claims to those ‘fairly encompassed’ by the named plaintiffs’ individual claims.” Piazza v. Ebsco Indus., Inc., 273 F.3d 1341, 1346 (11th Cir.2001) (quoting Gen. Tel. Co. of S.W. v. Falcon, 457 U.S. 147, 156, 102 S.Ct. 2364, 72 L.Ed.2d 740(1982)). Rule 23(a) provides that class certification is only appropriate where:

(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims and defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

The plaintiff class must also satisfy one of the three additional requirements of Rule 23(b). “For a district court to certify a class action, the named plaintiffs must have standing, and the putative class must meet each of the requirements specified in Federal Rule of Civil Procedure 23(a), as well as at least one of the requirements set forth in Rule 23(b).” Klay, 382 F.3d at 1250. Plaintiffs assert that the proposed class is certifiable under either Rule 23(b)(1) or 23(b)(3). (See Motion at 14). Under Rule 23(b)(1), the court may certify if “prosecuting separate actions ... would create a risk of inconsistent or varying adjudications ... that would establish incompatible standards of conduct for the party opposing the class.” Fed.R.Civ.P. 23(b)(1)(A). The final type of sustainable class requires the court to find “that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3).

In examining whether the party seeking certification has met the requirements of Rule 23, the court should not consider the merits of the proponents’ claims. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 40 L.Ed.2d 732(1974). The Eleventh Circuit, however, has counseled that this principle is not to be applied blindly so as “to artificially limit a trial court’s examination of the factors necessary to a reasoned determination of whether a plaintiff has met [the] burden of establishing each of the Rule 23 class action requirements.” Love v. Turlington, 733 F.2d 1562, 1564 (11th Cir.1984).

Upon initial review of Plaintiffs’ allegations, class certification does not appear an unreasonable proposition. However, after conducting the rigorous analysis required by Rule 23, it is apparent that Plaintiffs’ proposed class is not adequately defined. Furthermore, common questions among class members do not predominate because (1) Plaintiffs’ sweeping nationwide breach of contract claim is overly simplistic and fails to account for a variety of legal issues that must be addressed in determining the nature and terms of the alleged contracts between FedEx and plaintiff employees in the various covered jurisdictions; and (2) class treatment would gloss over countless individual inquiries necessary to properly adjudicate whether work was actually being performed during gap periods and unpaid breaks.

A. Plaintiffs fail to adequately defíne the class.

Before engaging in the analysis required by Rule 23, the question of whether the class has been adequately defined should be considered.8 See O’Neill v. The Home *655Depot U.S.A. Inc., 243 F.R.D. 469, 477 (S.D.Fla.2006) (citing Perez v. Metabolife Int’l, Inc., 218 F.R.D. 262, 269 (S.D.Fla.2003)). “[A] vague class definition portends significant manageability problems for the court.” Rink v. Cheminova, Inc., 203 F.R.D. 648, 660 (M.D.Fla.2001).

In their Motion, Plaintiffs propose a class consisting of “[a]ll employees of FedEx in the DGO and AGFS Divisions, in all states and the District of Columbia, except California, who were paid on an hourly basis.” (Motion at 2). Plaintiffs propose limiting the class “from the maximum time period preceding the filing of th[e] complaint, as permitted by the applicable statute of limitation, until such time as the Class period closes.”9 (See Amend. Compl. at ¶ 23). The issue of the applicable statutes of limitations is relevant not only to the amount of damages recoverable, but also impacts the definition of the class. Obviously potential class members will be included or excluded depending on whether the limitations period on each claim has run. Therefore, in order for the class to be defined in a way that will be manageable for purposes such as providing notice to potential members, the applicable limitations period or periods must be specifically identified.

In an effort to address this issue, Plaintiffs filed the compendium of state statutes, which includes information with respect to the limitations periods in each of the fifty jurisdictions to be included in the potential class. (See Compendium of State Statutes, Exh. to Motion [D.E. 56-4, 56-5]). Plaintiffs point out that courts in other multi-state class actions have addressed issues of varying state law by certifying subclasses. See Walsh v. Ford Motor, Co., 807 F.2d 1000, 1017 (D.C.Cir.1986). Plaintiffs suggest that jurisdictions with identical limitations periods could be grouped together in a subclass. (See Oral Argument at 26-27). The statutory limitations periods laid out by Plaintiffs in their compendium range from three to twenty years. Aside from their assurances at oral argument that dividing the class into subclasses would serve to rectify class definition problems, Plaintiffs have not presented a proposed subclass scheme.

FedEx correctly points out that in addition to the issue of varying limitations periods for each jurisdiction, there are also employees whose employment agreements included an express limitations period. (See Opposition at 6). The employment agreements signed by certain employees limit the time for filing suit to six months.10 (See id.). While some states recognize contractual provisions that create limitations periods shorter than the statutory period, other states refuse to give effect to such provisions. See Maxcess, Inc. v. Lucent Tech., Inc., 433 F.3d 1337, 1340-41 (11th Cir.2005) (noting that in New York, courts recognize a contractual limitations period shorter than the statutory provision, but in Florida, Section 95.03, Florida Statutes, provides that any such contractual provision is void). A proper examination of the limitations period applicable to potential class members with six-month provisions in their agreements would accordingly require a determination as to which jurisdiction’s law governs the agreement. Such an inquiry would entail examination of state choice of law rules, which might also include consideration of where the contract was entered into, the employee’s residence, and where the breach occurred, among other factors. This inquiry is necessarily individualized, and is not addressed by Plaintiffs’ definition of the proposed class.11

*656It is difficult to imagine how Plaintiffs could correct the defects with respect to their definition of the proposed class. Because Plaintiffs fail to satisfy any of the Rule 23(b) requirements, however, the undersigned does not invite a request by Plaintiffs to seek to rectify the inadequate class definition.

B. Plaintiffs’ proposed class satisñes the requirements of Rule 23(a).

Notwithstanding the determination that Plaintiffs’ proposed class fails scrutiny under Rule 23(b), the analysis required by Rule 23(a) is first addressed.

1. Numerosity

Because the proposed class is not adequately defined, if class definition were considered a part of the numerosity analysis of Rule 23(a)(1), the proposed class would fail to meet that requirement. However, the other aspect of numerosity — whether the potential number of class members “should raise a presumption that joinder would be impracticable,” E.E.O.C. v. Printing Indus. of Metro. Washington, D.C., Inc., 92 F.R.D. 51, 53 (D.D.C.1981) (citation omitted) — has clearly been met. Plaintiffs claim there are 100,000 or more potential class members, obviously making joinder impossible. (See Motion at 5).

2. Commonality

“Commonality requires that there is at least one issue affecting all or a significant number of proposed class members.” Leszczynski v. Allianz, Inc., 176 F.R.D. 659, 671 (S.D.Fla.1997) (citing Stewart v. Winter, 669 F.2d 328 (5th Cir.1982)). “[T]he commonality prerequisite does not require that all of the questions of law and/or fact be common.” Walco Invs., Inc. v. Thenen, 168 F.R.D. 315, 325 (S.D.Fla.1996) (citing Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1557 (11th Cir.1986) (emphasis in original)). In fact, “[t]he threshold for commonality is not high .... [and fjactual differences between class members do not necessarily preclude a finding of commonality.” Leszczynski, 176 F.R.D. at 671 (citations omitted). “ ‘The requirement is met if the questions linking the class members are substantially related to the resolution of the litigation even though the individuals are not identically situated.’ ” Collins v. Int’l Dairy Queen, Inc., 168 F.R.D. 668, 673-74 (M.D.Ga.1996) (quoting Coleman v. Cannon Oil Co., 141 F.R.D. 516, 521 (M.D.Ala.1992)).

Plaintiffs assert there are common questions of contract law existing among all members of the proposed class. (See Motion at 5-6). They also contend that common questions of fact exist in that all potential members were subject to FedEx’s alleged policy of failing to pay for all time worked. (See id. at 8-12). The existence of the documents making up the alleged contracts is undisputed; all hourly employees signed employment agreements, and the employment manuals were universally available. Also, the company policy that time between manual clock punches and the scheduled work times is unpaid is also an undisputed issue. These two issues are common among the class in spite of obvious concerns regarding whether common issues predominate. In light of the relatively low hurdle that must be surmounted, Plaintiffs have satisfied their burden of establishing commonality.

3. Typicality

“The key inquiry in determining whether a proposed class has ‘typicality1 is whether the class representative is part of the class and possesses the same interest and suffers the same injury as the class members.” Medine v. Washington Mut., F.A., 185 F.R.D. 366, 369-70 (S.D.Fla.1998)(citing Kreuzfeld, A.G. v. Carnehammar, 138 F.R.D. 594, 599 (S.D.Fla.1991)). When evaluating a class for typicality, the district court should “ ‘focus on whether named representatives’ claims have the same essential characteristics as the claims of the class at large.’ ” Appleyard v. Wallace, 754 F.2d 955, 958 (11th Cir.1985) (quoting De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir.1983)). “The typicality requirement may be satisfied despite substantial factual differences, however, when there is a ‘strong similarity of legal theories.’” Murray v. Auslander, 244 F.3d 807, 811(11th Cir.2001) (quoting Appleyard, 754 F.2d at 958). “As is the case with commonality, the requirements of typicality are not high.” Collins, 168 *657F.R.D. at 674 (citing Shipes v. Trinity Indus., 987 F.2d 311, 316 (5th Cir.1993)).

Plaintiffs assert their claims are typical because they and all potential class members were subject to the same company-wide policy that allegedly resulted in work being performed without pay. (See Motion at 13). Defendants argue that the named Plaintiffs’ testimony contradicts their claims with respect to whether contracts actually existed and regarding other issues such as work during unpaid breaks. (See Opposition at 22-23). However, because the standard for establishing typicality is not demanding, the named Plaintiffs have made a sufficient showing that their claims are typical of the class. The basis of the representative Plaintiffs’ claims is grounded in the identical alleged corporate policy of FedEx applicable to all hourly employees.

4. Adequacy of Representation

In order to properly establish the adequacy of representation requirement of Rule 23(a)(4), the party seeking certification must show: “(1) the class representative has no interests antagonistic to the class and (2) class counsel possesses the competence to undertake the litigation.” Hammett v. Am. Bankers Ins. Co., 203 F.R.D. 690, 695 (S.D.Fla.2001) (citing Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 726-28 (11th Cir.1987)). The court must be assured that the representative plaintiffs will pursue the claims of the class members with vigor to protect the interests of the unnamed members of the class. Kirkpatrick, 827 F.2d at 726. The representative plaintiffs must participate in the case and be sufficiently aware of the litigation. Id. at 727.

The named Plaintiffs do not have apparent interests that conflict with potential members of the class. Class counsel has successfully prosecuted a nearly identical action in California, and appears to be well equipped to litigate this case. Furthermore, the representative Plaintiffs appear to be involved in the litigation, as they have each participated in the proceedings through declaration and/or deposition. Therefore, the Rule 24(a)(4) requirements have been satisfied.

C. The proposed class does not satisfy the requirements of Rule 23(b).

1. Certification under Rule 23(b)(3)

Plaintiffs principally advance that certification is proper under Rule 23(b)(3). To achieve certification under Rule 23(b)(3), the plaintiff class must demonstrate both that common questions of law or fact predominate over inquiries affecting individual class members, and that the class procedure is superior to other methods of adjudicating the claims. The “predominance criterion [under Rule 23(b)(3)] is far more demanding” than the commonality requirement of Rule 23(a). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623-24, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997).

In a properly certified Rule 23(b)(3) class, “ ‘the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, must predominate over those issues that are subject only to individualized proof.’ ” Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1005 (11th Cir.1997) (quoting Kerr v. City of West Palm Beach, 875 F.2d 1546, 1557-58 (11th Cir.1989)). “Common issues of fact and law predominate if they lha[ve] a direct impact on every class member’s effort to establish liability and on every class member’s entitlement to injunctive and monetary relief.’ ” Klay, 382 F.3d at 1255 (quoting Ingram v. Coca-Cola Co., 200 F.R.D. 685, 699 (N.D.Ga.2001)). “Common issues will not predominate over individual questions if, ‘as a practical matter, the resolution of ... [an] overarching common issue breaks down into an unmanageable variety of individual legal and factual issues.’” Cooper, 390 F.3d at 722 (quoting Andrews v. Am. Tel. & Tel. Co., 95 F.3d 1014, 1023 (11th Cir.1996)). Certification is inappropriate in the event that “plaintiffs must still introduce a great deal of individualized proof or argue a number of individualized legal points to establish most or all of the elements of their individual claims.” Klay, 382 F.3d at 1255 (citing Perez, 218 F.R.D. at 273).

The predominance inquiry requires an examination of “ ‘the claims, defenses, relevant facts, and applicable substantive law,’ ... to *658assess the degree to which resolution of the classwide issues will further each individual class member’s claim against the defendant.”