Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFFS’ MOTIONS FOR CONDITIONAL CERTIFICATION AS A COLLECTIVE ACTION UNDER THE FSLA AND CERTIFICATION AS A CLASS ACTION UNDER FEDERAL RULE OF CIVIL PROCEDURE 23 [TO BE FILED UNDER SEAL] MARK W. BENNETT, District Judge. TABLE OF CONTENTS I.INTRODUCTION 877 II. FACTUAL BACKGROUND.................................................878 III. COMPATIBILITY OF FLSA AND IWPCL CLAIMS ..........................879 A. Preemption...........................................................880 B. Dual Certification.....................................................886 C. Rules Enabling Act....................................................889 IV. FLSA COLLECTIVE ACTION..............................................890 A. Legal Standards.......................................................890 B. Legal Analysis........................................................894 1. First or second step?...............................................894 2. Conditional certification ...........................................895 a. Substantive analysis under the ñrst step.........................896 b. Substantive analysis under the second step.......................897 i. Employment and factual settings of plaintiffs................897 ii. Defenses available to Tyson................................899 tit. Fairness, manageability, and procedural considerations .....900 C. Conditionally Certified Collective Action Class...........................900 V. IWPCL CLASS ACTION....................................................901 A. Rule 23(a) Legal Standards And Analysis................................903 1. Commonality......................................................903 2. Typicality.........................................................904 3. Adequacy of representation.........................................905 4. Merged result......................................................906 B. Rule 23(b) Legal Standards And Analysis................................907 1. Rule 23(b)(1)......................................................907 2. Rule 23(b)(3) ......................................................908 C. Certified Class Action..................................................909 VI.CONCLUSION AND ORDER 909 Plaintiff employees request the court to allow them to proceed as representatives of a group of employees against Defendant for its allegedly illegal wage payment practices. Several issues must be addressed in considering Plaintiffs’ request, but one question stands out: Does Defendant’s “gang time” compensation system allow Plaintiff employees to gang up on Defendants? I. INTRODUCTION Plaintiffs Dale Sharp, et al., filed a “Class Action and Representative Action Complaint” against Defendant Tyson Foods, Inc., on February 6, 2007. Dkt. #2. Plaintiffs bring two claims against Tyson: (1) a class action under Federal Rule of Civil Procedure 23 for Tyson’s alleged violations of the Iowa Wage Payment Collection Law (IWPCL), and (2) a collective action under 29 U.S.C. § 216(b) for Tyson’s alleged violations under the Fair Labor Standards Act (FLSA). Plaintiffs state the court has subject matter jurisdiction over their IWPCL claim under 28 U.S.C. § 1332(d) (diversity jurisdiction for class actions), and subject matter jurisdiction over their FLSA claim under 28 U.S.C. § 1331 (federal question jurisdiction). Tyson filed its answer, raising many affirmative defenses, on March 28, 2007. Dkt. # 15. On July 6, 2007, the court approved a scheduling order and discovery plan. Dkt. # 23. The court limited discovery to class certification issues, and set deadlines for the parties’ briefs related to class action and collective action certification. On November 27, 2007, the court approved the parties’ protective order to keep certain information confidential during the parties’ discovery and litigation of this lawsuit. Dkt. # 29. On February 4, 2008, Plaintiffs filed a renewed sealed motion for the court to conditionally certify its FLSA claim as a collective action under the FLSA. Dkt. # 34. On the same date, Plaintiffs also filed a renewed sealed motion for the court to certify its IWPCL claim as a class action under Rule 23. Dkt. # 35. Tyson responded with its resistance to Plaintiffs’ motion for class certification on March 4, 2008, Dkt. # 45, and with its resistance to Plaintiffs’ motion for conditional certification on March 5, 2008, Dkt. #49. Plaintiffs then filed their replies on March 26, 2008. Dkt. #59. No party has requested oral arguments on the class certification and conditional collective action certification issues. As a result, the matter is fully submitted. The trial date has not yet been set, but a telephonic status conference is set for July 9, 2008, before Chief Magistrate Judge Paul A. Zoss. Dkt. # 61. II. FACTUAL BACKGROUND There were originally ten named plaintiffs in this action, but only six remain due to the dismissal of all claims involving Tyson’s Denison, Iowa, facility. Dkt. # 40. The six remaining plaintiffs are current or former production employees who work or who have worked for Tyson’s Storm Lake, Iowa, pork processing facility. Tyson’s facility in Storm Lake receives, slaughters, and processes hogs into various cuts of pork that are then packaged and shipped to other Tyson facilities or directly to customers. The Storm Lake facility has approximately 1,600 hourly production and support employees that work on three shifts. These employees work in six main departments: the Kill, Cut, Retrim, Materials Handling/Load Out, Rendering, and Maintenance departments. Most of the hourly employees work in the Kill, Cut, and Retrim departments. None of the six remaining named plaintiffs have worked in the Rendering, Load Out, or Maintenance departments at Tyson. All hourly production employees are required to clock in and out before and after their shift. Clocking in and out is generally only for attendance purposes. Clocking in and out only affects an employee’s paid time if the employee clocks in late (in which case the employee’s pay is reduced) or comes in early or stays late to perform set up and clean up work (in which case the employee’s pay is increased). The employees in the Kill, Cut, and Retrim departments are paid by “gang time,” or the length of production in their department, which is generally the time it takes for hogs to travel on mechanized belts through the department. More specifically, gang time begins when the first hog or piece of pork “hits the floor” of the specific department, and gang time ends when the last hog or piece of pork “hits the floor” in that department. As a result, gang time represents the amount of work each employee performs while on the production line, and those employees at the beginning of the production line start and end a few minutes earlier than those employees at the end of the production line. The employees in the Rendering, Materials Handling/Load Out, and Maintenance departments are not paid by gang time. Instead, these employees are paid based on a preset start time until a pre-set end time. In addition, most hourly employees at Tyson are given a “K code” value to compensate them for the work they perform donning and doffing their Personal Protective Equipment (PPE) before and after their shift begins. PPE is the clothing Tyson provides their employees and requires them to wear to perform their jobs. Prior to 2007, Tyson paid every employee within certain departments an extra four minutes to compensate them for the extra time they needed to don and doff their PPE. In 2007, and as a result of the United States Supreme Court decision in IBP, Inc. v. Alvarez, 546 U.S. 21, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005), Tyson changed its K code policy. Now, all Tyson employees are given a K code value specific to their positions to represent the extra time they need to be compensated for donning and doffing their PPE. Some are not given any K code value, but those that don and doff PPE are given a K code value somewhere between four and seven minutes. All hourly production employees are required to wear certain PPE, but not all wear the same PPE. Employees often wear PPE such as hard hats, hairnets, beard nets (if applicable), rubber soled or steel-toed boots, hearing protection, rubber or cotton or kevlar or mesh gloves, company issued shirts and pants (“whites”), frocks, belly guards, aprons, and arm guards. In addition, most employees throughout the plant use knives, and these employees are required to wear additional clothing as added protection. Most employees who use knives are required to dip their knife and related equipment in a sanitizing solution before beginning production work. Likewise, when leaving the department, the employee must perform the same sanitation procedure. In addition, at the end of their shift, these employees are required to rinse their knives and related equipment at one of several wash nozzles either in the production area or immediately outside the production area at the wash station. Employees who are required to wear a frock, “whites,” hard hat, hairnet, beardnet, steel-toed boots, and earplugs must have these items on before entering the production area. All hourly employees are assigned a locker in the main locker rooms off the production hallway, which the employees use to store their required and optional clothing items and equipment. Hourly production employees receive one fifteen minute paid break and one thirty minute unpaid meal period per shift. Employees do not have to perform any washing or sanitizing during their meal period. III. COMPATIBILITY OF FLSA AND IWPCL CLAIMS The specific circumstances of this case must be made absolutely clear. Plaintiffs have two claims against Tyson: a federal law FLSA claim, and a state law IWPCL claim. The court has subject matter jurisdiction over the federal law claim because it is based on federal law. See 28 U.S.C. § 1331. The court has subject matter jurisdiction over the state law claim because the parties meet the requirements for diversity jurisdiction under the Class Action Fairness Act of 2005 (CAFA). Plaintiffs ask the court to certify their federal law claim as a “collective action” under § 216(b) of the FLSA. Plaintiffs also ask the court to certify their state law claim as a “class action” under Rule 23 of the Federal Rules of Civil Procedure. Tyson argues Plaintiffs cannot bring both the FLSA claim and the IWPCL claim in the same action because the Plaintiffs’ FLSA claim preempts Plaintiffs’ IWPCL claim in this case. Tyson additionally argues that Plaintiffs’ IWPCL claim and request for class certification under Rule 23 should be either denied, dismissed, or limited because the class certification procedure under Rule 23 is fundamentally opposed to the collective action certification procedure under § 216(b). Tyson’s arguments address the compatibility of FLSA and state law claims, and they have been the subject of many district court dockets recently. See, e.g., Ellis v. Edward D. Jones & Co., L.P., 527 F.Supp.2d 439, 459 n. 19 (W.D.Pa.2007) (noting the “recent phenomenon” of the “ ‘explosion’ of hybrid lawsuits involving both state and FLSA claims”). Unfortunately, however, circuit court opinions are rare on the issues confronted in these circumstances, and there is an overall paucity of decisions on the subject in the Eighth Circuit. The court is, therefore, navigating some relatively uncharted, or at least rough, waters in addressing these arguments. The court will first address the issue of preemption, followed by Tyson’s arguments against dual certification. A. Preemption The Supremacy Clause “states that the laws of the United States made pursuant to the Constitution are the ‘supreme Law of the Land.’ ” Wuebker v. Wilbur-Ellis Co., 418 F.3d 883, 886 (8th Cir.2005) (quoting U.S. Const., Art. VI, cl. 2). Whether federal law preempts state law is a question of congressional intent. Id. (“Congressional intent is the touchstone for determining the preemptive effect of a statute.” (citing English v. Gen. Elec. Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990))). The United States Supreme Court has identified a three-part “categorical framework” to discern whether Congress meant to preempt state law. Williamson v. Gen. Dynamics Corp., 208 F.3d 1144, 1151-52 (9th Cir. 2000). According to this framework, [c]ourts discern an intent to preempt state law when Congress expressly forbids state regulation (express preemption), when it creates a scheme of federal regulation so pervasive that the only reasonable inference is that it meant to displace the states (field preemption), and when a law enacted by it directly conflicts with state law (conflict preemption). Wuebker, 418 F.3d at 886 (citing English, 496 U.S. at 78-79, 110 S.Ct. 2270). Notably, the three categories of preemption— express, field, and conflict — are not “rigidly distinct.” English, 496 U.S. at 79 n. 5, 110 S.Ct. 2270. In this case, and keeping in mind that the three categories of preemption are somewhat related, the only question is whether Plaintiffs’ IWPCL claim is barred under a conflict preemption analysis. Express and field preemption do not apply because Congress did not specifically prohibit state regulation in this area. See Anderson v. Sara Lee Corp., 508 F.3d 181, 192 n. 10 (4th Cir.2007) (addressing the similar question of whether plaintiffs state law contract, negligence, and fraud claims were preempted by the FLSA, and finding “there is no question that express preemption and field preemption are inapposite to this dispute”); Williamson, 208 F.3d at 1151-52 (addressing the similar question of whether plaintiffs common law fraud claim was preempted by the FLSA, and focusing on whether conflict preemption applied). In fact, the FLSA contains a savings clause that allows states to enact their own laws in this area. 29 U.S.C. § 218(a). Moreover, Tyson does not specifically argue express or field preemption applies. Instead, Tyson relies almost exclusively on the recent Fourth Circuit Court of Appeals’s decision in Anderson — which used a conflict preemption analysis — -for its argument that Plaintiffs’ IWPCL claim is preempted by the FLSA. Conflict preemption, also called implied preemption, can occur in two ways: “when it is impossible for a private party to comply with both state and federal law, and when state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” Wuebker, 418 F.3d at 887 (quoting Geier v. Am. Honda Motor Co., 529 U.S. 861, 873, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000)); see Williamson, 208 F.3d at 1152 (noting the two types of conflict preemption). Tyson does not argue that it is impossible for Tyson to comply with both the FLSA and the IWPCL, and the court is unaware of any reason why dual compliance would not be possible. Therefore, the relevant question in this case, as it was in Anderson and Williamson, is whether the state law claim “stands as an obstacle” to Congress’s objectives in the FLSA. “In determining whether state law ‘stands as an obstacle’ to the full implementation of a federal law, ‘it is not enough to say that the ultimate goal of both federal and state law’ is the same.” Forest Park II v. Hadley, 336 F.3d 724, 733 (8th Cir.2003) (quoting Int’l Paper Co. v. Ouellette, 479 U.S. 481, 494, 107 S.Ct. 805, 93 L.Ed.2d 883 (1987)). State law is “preempted if it interferes with the methods by which the federal statute was designed to reach that goal.” Id. “Thus, ‘[wjhere a state statute conflicts with, or frustrates, federal law, the former must give way.’ ” Id. (quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 663, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993)). In Anderson, the Fourth Circuit Court of Appeals held that “Congress prescribed exclusive remedies in the FLSA for violations of its mandates” and, therefore, the “Class Members’ FLSA-based contract, negligence, and fraud claims are precluded under a theory of obstacle preemption.” 508 F.3d at 194. Most important to the court’s holding was the “[c]rucial[ ]” fact that “the Class Members’ state claims all depended on establishing that [the defendant] violated the FLSA,” and that “[w]ithout doubt, these state claims essentially require the same proof as claims asserted under the FLSA itself.” Id. at 193. The court further stated: The Class Members do not contend, however, that any North Carolina law entitles them to unpaid wages. Rather, as discussed above, they rely on the FLSA for their rights, and they invoke state law only as the source of remedies for the alleged FLSA violations. Importantly, the FLSA does not explicitly authorize states to create alternative remedies for FLSA violations. Id. The court also noted that its holding was “consistent with the rulings of several district courts deeming state claims to be preempted by the FLSA where those claims have merely duplicated FLSA claims.” Id. at 194 (citing Choimbol v. Fairfield Resorts, Inc., No. 2:05cv463, 2006 WL 2631791, at *4-6 (E.D.Va. Sept. 11, 2006); Moeck v. Gray Supply Corp., No. 03-1950, 2006 WL 42368, at *2 (D.N.J. Jan. 6, 2006); Chen v. St. Beat Sportswear, Inc., 364 F.Supp.2d 269, 292-93 (E.D.N.Y. 2005); Morrow v. Green Tree Servicing, L.L.C., 360 F.Supp.2d 1246, 1252-53 (M.D.Ala.2005); Sorenson v. CHT Corp., No. 03 C 1609(L), 2004 WL 442638, at *5-7 (N.D.Ill. Mar. 9, 2004); Johnston v. Davis Sec., Inc., 217 F.Supp.2d 1224, 1227-28 (D.Utah 2002); Alexander v. Vesta Ins. Group, Inc., 147 F.Supp.2d 1223, 1240-41 (N.D.Ala.2001)). The Ninth Circuit Court of Appeals came to a different conclusion in Williamson. In Williamson, the court addressed whether plaintiffs’ common law fraud claims were preempted by the FLSA. 208 F.3d at 1152-54. The court stated conflict (obstacle) preemption would apply if two conditions were met: “(1) the anti-retaliation provision [in the FLSA] covers [plaintiffs’ common law fraud claims] and (2) the FLSA is the exclusive remedy for claims duplicated by or equivalent of rights covered by the FLSA.” Id. at 1152. Regarding the first condition, the court held that tile FLSA anti-retaliation provision did not apply to defendant’s allegedly fraudulent conduct. Id. In other words, plaintiffs’ common law fraud claim provided the sole right and remedy for defendants’ alleged bad acts. Id. Regarding the second condition, the court found the FLSA did not provide exclusive remedies for violating its provisions. The court initially noted that the FLSA’s savings clause at 29 U.S.C. § 218(a), which allows states to enact stricter wage, hour, and child labor provisions, “indicates that [the FLSA] does not provide an exclusive remedy.” Williamson, 208 F.3d at 1151. Then the court distinguished a pair of cases, Kendall v. City of Chesapeake, 174 F.3d 437 (4th Cir. 1999), and Lerwill v. Inflight Motion Pictures, 343 F.Supp. 1027 (N.D.Cal.1972), to at least raise doubt that the FLSA provides the exclusive remedy for violating its provisions. Both of these cases suggested or stated that the FLSA contained the exclusive remedies for its own violations. Kendall, 174 F.3d at 443 (“[I]n the FLSA Congress manifested a desire to exclusively define the private remedies available to redress violations of statute’s terms.”); Lerwill, 343 F.Supp. at 1029 (“The only conclusion possible, then, is that the statutory remedy is the sole remedy available to the employee for enforcement of whatever rights he may have under the FLSA.”). Regarding Kendall, the Williamson court noted that Kendall was not a case about preemption, but about “whether another federal statute (Section 1983) can support a claim that clearly falls under the FLSA.” Williamson, 208 F.3d at 1153. Regarding Lerwill, the Ninth Circuit Court of Appeals noted it was also “dubious authority” because it did not discuss preemption at all, and because “[i]t was about a plaintiffs effort to get a more favorable remedy.” Id. Thus, in the end, the court found neither of its obstacle preemption conditions satisfied, and therefore held that the FLSA did not preempt plaintiffs’ common law fraud claim. Id. Whether this court should ultimately follow the persuasive authority in Anderson or Williamson — there is no mandatory authority on point — requires the court to review the applicable state law in this case, the IWPCL, in light of the arguments made for and against preemption. The IWPCL is a “remedial statute,” and “meant to facilitate the public policy of allowing employees to collect wages owed to them by their employers.” Hornby v. State, 559 N.W.2d 23, 26 (Iowa 1997). Section 91A.3 gives employees the right to receive their wages. It states, “An employer shall pay all wages due its employees .... ” Iowa Code § 91A.3. The IWPCL also gives employees the right to receive their “wages due” in “at least monthly, semimonthly, or biweekly installments on regular paydays,” id., and provides suspended or terminated employees with the right to receive their “wages earned” by “the next regular payday,” id. § 91A.4. The FLSA, of course, provides similar rights, like the rights to a minimum wage and overtime pay. 29 U.S.C. §§ 206, 207. A big difference between the FLSA and IWPCL is that the IWPCL is more concerned with when or how wages are paid. See Runyon v. Kubota Tractor Corp., 653 N.W.2d 582, 585 (Iowa 2002) (“We have observed that the purpose of chapter 91A is to ‘facilitate collection of wages by employees.’ ” (quoting Condon Auto Sales & Serv., Inc. v. Crick, 604 N.W.2d 587, 593 (Iowa 1999))). Nevertheless, both statutes require employers to pay certain wages to their employees. See Stahl v. Big Lots Stores, Inc., No. 06-CV-1026-LRR, 2007 WL 3376707, at *5 (N.D.Iowa Nov. 7, 2007) (“The purpose of the FLSA and the IWPCL is to ‘facilitate the collection of wages owed to employees.’ ” (quoting Phipps v. IASD Health Servs. Corp., 558 N.W.2d 198, 201 (Iowa 1997))). While the FLSA prescribes exactly what kind of wages must be paid, see 29 U.S.C. §§ 206, 207, the IWPCL simply requires that an employer “pay all wages due its employees,” Iowa Code § 91A.3. Thus, the FLSA may be used to establish an employee’s right to a certain amount of wages under the IWPCL and an employer’s violation of the IWPCL for not paying “all wages due its employees.” Id. And that appears to be exactly the case here. Plaintiffs complaint alleges that Tyson is obligated to pay all wages to its employees under the IWPCL, but Plaintiffs never state what law or right — other than those rights conferred by the FLSA — they rely on that establishes they are entitled to the wages they seek. In addition, despite Tyson’s argument that Plaintiffs’ IWPCL claim is based on a violation of the FLSA, Plaintiffs do not assert their right to wages due under the IWPCL is conferred by anything other than the FLSA. In such a case, it is perhaps obvious that Plaintiffs rely on the FLSA to establish a violation under the IWPCL for Tyson’s failure to “pay all wages due its employees.” Id. This is not surprising, as this court has recognized this situation before: The “violation of the FLSA is precisely the basis for the wages purportedly owed under the IWPCL in this case. Thus, the IWPCL claim is essentially ‘duplicative’ of the FLSA claim in this action.” Bartleson v. Winnebago In-dust., Inc., 219 F.R.D. 629, 634 (N.D.Iowa 2003) (citations omitted). As a result, this case appears similar to the case in Anderson. Plaintiffs state law claims in Anderson depended on violations of the FLSA, as they do here. 508 F.3d at 193-94. In Williamson, however, the plaintiffs common law fraud claim did not depend on any violation of the FLSA — the FLSA did not even provide a basis for recovery for the claim asserted by the plaintiff. 208 F.3d at 1152-53. Nevertheless, the court does not believe such “duplication” means Plaintiffs’ IWPCL claim is preempted by their FLSA claim because the court, like the court in Williamson, does not believe the FLSA provides the exclusive remedy for its violations. Thus, the court disagrees with the Fourth Circuit Court of Appeals’s determination that the FLSA provides otherwise. Anderson, 508 F.3d at 194; see Roman v. Maietta Const., Inc., 147 F.3d 71, 76 (1st Cir.1998) (“As the trial court noted, ‘the FLSA is the exclusive remedy for enforcement of rights created under the FLSA.’ ”). As the court in Williamson determined, “the ‘savings clause’ indicates that [the FLSA] does not provide an exclusive remedy.” 208 F.3d at 1151. The savings clause provides: No provision of this chapter or of any order thereunder shall excuse noncompliance with any Federal or State law or municipal ordinance establishing a minimum wage higher than the minimum wage established under this chapter or a maximum work week lower than the maximum work week established under this chapter.... 29 U.S.C. § 218(a). Under the savings clause, a state may clearly provide greater benefits, or rights, than the FLSA. While the savings clause does not specifically reference remedies, the court believes the savings clause indicates that Congress did not foreclose states from providing alternative remedies. In addition, while the Anderson court focused on the fact that the FLSA does not “explicitly authorize states to create alternative remedies for FLSA violations,” 508 F.3d at 193, neither does the FLSA explicitly forbid states from doing so. In light of the savings clause, the court thinks the better conclusion is that the FLSA does not provide the exclusive remedy for violations of its mandates. Moreover, because the FLSA does not provide the exclusive remedy for its violations, the court does not believe Plaintiffs’ duplicative IWPCL claim “interferes,” “frustrates,” “conflicts,” or “stands as an obstacle” to the goals of the FLSA. Forest Park II, 336 F.3d at 733 (quotations omitted). It may be true that Plaintiffs’ IWPCL claim depends on proving an FLSA violation to succeed. But the court does not see how this dependency or duplication means, under an implied/conflict/obstacle preemption analysis, that Plaintiffs’ IWPCL claim is preempted by the FLSA. The goal of the FLSA — “to eliminate ‘labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers,’ ” Anderson, 508 F.3d at 192 (quoting 29 U.S.C. § 202(a))— is not frustrated by enforcing the IWPCL, see Forest Park II, 336 F.3d at 733 (noting a state statute must give way when it frustrates federal law). And the court does not see how enforcement of the IWPCL “interferes with the methods by which the federal statute was designed to reach that goal.” Id. (quotation omitted). Tyson certainly argues the “method” of FLSA collective action certification is interfered with by the Rule 23 class action procedure for Plaintiffs’ IWPCL claim, but the IWPCL itself does not interfere with the methods by which the FLSA is implemented. The IWPCL does not interfere with or stand as an obstacle to the FLSA, despite the fact that Plaintiffs’ IWPCL claim is duplicative of their FLSA claim. See Takacs v. AG. Edwards & Sons, Inc., 444 F.Supp.2d 1100, 1117 (S.D.Cal.2006) (“Here, as in Williamson, Plaintiffs’ fraud claims under [California’s Unfair Competition Law] would not contradict any purpose or application of the FLSA, and therefore should stand.”). Of course, the court is aware of the plethora of cases holding that the FLSA preempts duplicative state law claims. See Anderson, 508 F.3d at 194 (citing cases); Woodard v. FedEx Freight East, Inc., 250 F.R.D. 178, 189, 2008 WL 471552, at *11 (M.D.Pa.2008) (“[A] conflict exists where, as here, the state wage law claim parallels the FLSA action.”); Lopez v. Flight Servs. & Sys., Inc., No. 07-CV-6186 CJS, 2008 WL 203028, at *5, 7 (W.D.N.Y. Jan. 23, 2008) (holding that “Plaintiffs’ state common-law claims for fraud, breach of contract, breach of implied covenants of good faith, tortious interference with contract, and unjust enrichment are preempted by the FLSA” because they are duplicative of the FLSA); Nimmons v. RBC Ins. Hold ings (USA), Inc., No. 6:07-cv-2637, 2007 WL 4571179, at *2 (D.S.C. Dec. 27, 2007) (“The foregoing authorities compel the conclusion that Plaintiffs state law claims are not viable and should be dismissed as duplicative of the rights and remedies available under the FLSA.”); see also Ellis, 527 F.Supp.2d at 449 (using a preemption analysis to “assess[ ] the opt-in/opt-out conflict,” and although not deciding whether the FLSA preempted plaintiffs state law claims, suggesting it would reach such a conclusion). In fact, nearly every court to consider the issue recognizes that state law claims that merely duplicate or depend on the FLSA are preempted by federal law. See Lopez, 2008 WL 203028, at *5 (“Moreover, almost without exception, the District Courts that have considered the question [of whether a duplicative state law claim is preempted by the FLSA] have reached the same result [as the Fourth Circuit Court of Appeals in Anderson].” (citing Choimbol, 2006 WL 2631791, at *5, and Petras v. Johnson, No. 92 CIV. 8298(CSH), 1993 WL 228014, at *2, 3 (S.D.N.Y. June 22, 1993))). But there are also plenty of cases holding the FLSA does not generally preempt state law claims in a given case. See Guzman v. VLM, Inc., No. 07-CV-1126 (JG)(RER), 2008 WL 597186, at *10 (E.D.N.Y. March 2, 2008) (“[I]t is settled in the Second Circuit that FLSA does not preempt state wage and hour laws.”); Thorpe v. Abbott Labs., Inc., 534 F.Supp.2d 1120, 1124 (N.D.Cal.2008) (“[T]he FLSA clearly indicates that it does not preempt stricter state law claims.” (citing 29 U.S.C. § 218(a))); Sjoblom v. Charter Commc’ns, L.L.C., No. 3:07-cv-0451-bbc, 2007 WL 4560541, at *5 (W.D.Wis. Dec. 19, 2007) (“[T]he [FLSA] does not preempt Wisconsin wage and hour laws.”); Neary v. Metro. Prop. & Cas. Ins. Co., 472 F.Supp.2d 247, 251 (D.Conn.2007) (“[T]he FLSA does not preempt state wage and hour statutes.”); Takacs, 444 F.Supp.2d at 1116-18 (“The Ninth Circuit has held that the FLSA does not preempt state law overtime wage laws.... ”); Dancer I-VII v. Golden Coin, Ltd., 176 P.3d 271, 273 (Nev. 2008) (per curiam) (“Given that the FLSA expressly provides that higher state minimum wage legislation may control minimum wage claims, and because Nevada’s minimum wage law provides greater employee wage protection than that provided under the FLSA, we conclude that the FLSA does not preempt the NWHL.”). Although this case may be a first in holding that the FLSA does not preempt a duplicative state law claim, the court believes the better conclusion in this case— where there is no controlling authority on the subject and the court believes the FLSA does not provide the exclusive remedy for its violations — is that the FLSA does not preempt Plaintiffs’ duplicative IWPCL claim. B. Dual Certification Tyson’s second argument against Plaintiffs’ IWPCL claim is that the procedural aspects of class certification under Federal Rule of Civil Procedure 23 are so completely at odds with the procedural aspects of collective action certification under 29 U.S.C. § 216(b), that Plaintiffs’ IWPCL claim must be denied, dismissed, or limited. Tyson’s argument focuses on the differences between the “opt-out” procedure under Rule 23 and the “opt-in” procedure under § 216(b). This argument, like Tyson’s preemption argument, is particularly popular among district court dockets right now. See, e.g., Woodard, at 183-90, 2008 WL 471552, at *6-12. No clear or consistent resolution appears imminent, however, and like the question of preemption, there is no controlling authority for the court to rely on. Despite their confusing semantic similarities, the differences between class actions and collective actions are great. See Lugo v. Farmer’s Pride Inc., 2008 WL 638237, at *2 (E.D.Pa. March 7, 2008) (“Class actions and collective actions can often be confused with each other.”); Salazar, 527 F.Supp.2d at 877 (“At the outset, it is crucial to note the distinction between a FLSA collective action and a Rule 23 class action. The distinction is sometimes blurred.”). See generally Wright, Miller, & Kane, Federal Practice and Procedure § 1807 at 468-77 (2005 & Supp.2007) [hereinafter Wright] (stating the differ-enees between Rule 23 class actions and FLSA collective actions). Plaintiffs in class actions certified under Rule 23 are generally a member of the class unless they opt-out. See In re Piper Funds, Inc., 71 F.3d 298, 303-04 (8th Cir.1995) (recognizing plaintiffs have a right to opt out of a Rule 23 class action). Under § 216(b), plaintiffs must opt-in to become a member of the collective action. 29 U.S.C. § 216(b) (“No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.”). There is no doubt that the opt-in/opt-out distinction represents “a fundamental, irreconcilable difference between the class action described by Rule 23 and that provided for by [the] FLSA.” Schmidt v. Fuller Brush Co., 527 F.2d 532, 536 (8th Cir. 1975); see Woodard, at 187, 2008 WL 471552, at *9 (“Rule 23 is the antithesis of § 216(b).”). Because of this difference many courts have held that Rule 23 class actions may not be maintained in the same action as a FLSA collective action. See Burkhart-Deal v. Citifinancial, Inc., 2008 WL 2357735, at *1-2 (W.D.Pa. June 5, 2008) (concluding “the inherent incompatibility Plaintiffs FLSA claims and state law class claims, in this particular case, require dismissal of the state law class claims”); Woodard, at 188, 2008 WL 471552, at *12 (dismissing Plaintiffs’ Rule 23 class allegations because “the Court finds that simultaneous prosecution of Mr. Woodard’s FLSA collective action and [Pennsylvania Minimum Wage Act claim] class action will frustrate the congressional intent and circumvent § 216(b)’s opt-in requirement”); Ellis, 527 F.Supp.2d at 452 (dismissing plaintiffs’ parallel state law claims because “the policies that underlie the FLSA” would be “totally] negat[ed] ... if the Court were to allow Plaintiffs to pursue state law overtime remedies under Rule 23 and FLSA opt-in remedies in the same action”). Still many other courts, however, have allowed both class and collective actions to proceed. See Osby, 2008 WL 2074102, at *3 (“District court cases permitting FLSA collective actions to proceed simultaneously with Rule 23 state actions are legion.”); Jackson v. Alpharma Inc., 2008 WL 508664, at *4-5 (D.N.J. Feb. 21, 2008) (addressing the incompatibility argument, and concluding “that it is premature to dismiss Plaintiffs state law claims, given that Plaintiff has alleged this Court has independent CAFA jurisdiction over the claims”). In fact, in this district, the court has recognized that “[o]ther district courts have proceeded well beyond the stage of exercising supplemental jurisdiction and have certified both FLSA collective actions and Rule 23 classes involving claims of violations of state wage payment collection laws.” Salazar, 527 F.Supp.2d at 884-86 (choosing to exercise, at the time, its supplemental jurisdiction to entertain plaintiffs’ IWPCL claim and FLSA claim together). Of course, in this case, there is no question of supplemental jurisdiction: Plaintiffs’ state law claim under the IWPCL has an independent jurisdictional basis under 28 U.S.C. § 1332(d), or CAFA. The only question now is whether the differences between Rule 23 class action certification and collective action certification under the FLSA require the court to deny, dismiss, or limit Plaintiffs’ IWPCL claim and request for class certification. Although the court is cognizant of the procedural differences between a Rule 23 class action and FLSA collective action, as well as the unique challenges created when such actions are maintained in the same suit, the court does not feel these differences and challenges are a reason to deny, dismiss, or limit Plaintiffs’ class action claim, especially when such a claim has an independent jurisdictional basis. Plaintiffs, of course, must still meet the requirements for collective action and class action certification. If they do, the court will then take up the challenges inherent in maintaining both actions in one suit. The inherent challenges, however, are not a basis to deny, dismiss, or limit Plaintiffs’ state law claim. See Salazar, 527 F.Supp.2d at 886 (“The court is well-equipped to manage a case involving a FLSA collective action and a state-law class action.”); Guzman, 2008 WL 597186, at *9 (“It is true that there would be some possibility of confusion, but this can be allayed through careful wording of the class notice.”). After all, Plaintiffs would still be under the same opt-in/opt-out predicament even if Plaintiffs brought their IWPCL suit in another court or action. Addressing this situation, another district court opined: Plaintiffs state law class action claims could proceed separately from the federal action in this court pursuant to the Class Action Fairness Act. Although including the federal and state law claims in the same lawsuit will pose challenges, I am not persuaded that separate adjudication of these claims will reduce confusion among potential class members who would still receive two notices concerning almost identical facts: one requiring them to opt in to a federal collective action and another including them in a state law class action unless they opt out. Clearly drafted collective and class action notices should help alleviate confusion in this case. Sjoblom, 2007 WL 4560541, at *5 (citation omitted). Tyson also argues the court should not allow both actions to proceed because doing so would have serious legal ramifications for potential plaintiffs who did not opt-in to the FLSA action. In other words, if class members under Rule 23 failed to opt-in to the FLSA collective action, they might subsequently be precluded by principles of res judicata from asserting their federal rights under the FLSA. The court knows of no case that has so held, and the court does not believe this is a serious or valid concern, see Guzman, 2008 WL 597186, at *10 n. 11 (rejecting this argument), or that Tyson genuinely shares this concern. Finally, Tyson argues that the court should exercise its discretion and limit the number of class members under Rule 23 to only those that opt-in under the FLSA. This court has done so when addressing concerns of supplemental jurisdiction, see Bartleson, 219 F.R.D. at 634-38 (holding that the court’s supplemental jurisdiction over plaintiffs’ state law claims extended only to those state law class members who also opted in to the FLSA claim), but see Lindsay v. Gov’t Employees Ins. Co., 448 F.3d 416, 420-425 (holding the opt-in provision of the FLSA did not expressly prohibit the exercise of supplemental jurisdiction over those state law claimants that did not opt-in), but Plaintiffs IWPCL claims have an independent jurisdictional basis in this case under CAFA. Furthermore, because the court does not find the differences between a class action and a collective action preclude the maintenance of both actions, the court does not believe it is necessary to limit the class action in the manner suggested. C. Rules Enabling Act Some of the decisions confronting the issues in this case address an argument against dual certification based on the Rules Enabling Act (REA), 28 U.S.C. § 2072(a). E.g., Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 164, 2008 WL 2201469, at *12 (S.D.N.Y.2008). Such an argument has not been advanced in this case. Thus, the court expresses no opinion on the subject other than to note that there is no controlling authority, and that courts have come to differing conclusions. Compare Ellis, 527 F.Supp.2d at 454 (finding, in the alternative under the REA, that plaintiffs duplicative state law claims should be dismissed), with Osby, 2008 WL 2074102, at *3-4 (rejecting defendant’s argument under the REA); Sjoblom, 2007 WL 4560541, at *5 (same); Freeman, 2007 WL 4440875, at *3 (same). IV. FLSA COLLECTIVE ACTION Plaintiffs seek conditional certification of their FLSA claim as a collective action pursuant to 29 U.S.C. § 216(b). Plaintiffs request the court to authorize notice to all potential collective action class members. Tyson resists the Plaintiffs’ request. A. Legal Standards “An employee may bring an FLSA action on behalf of himself and any other ‘similarly situated’ employees.” Salazar v. Agriprocessors, Inc. (Salazar II), No. 07-CV-1006-LRR, 2008 WL 782803, at *3 (N.D.Iowa March 17, 2008) (quoting 29 U.S.C. § 216(b)). Specifically, the FLSA provides: An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. 29 U.S.C. § 216(b). Thus, the FLSA “allows as class members only those who ‘opt in.’ ” Schmidt v. Fuller Brush Co., 527 F.2d 532, 536 (8th Cir.1975). The FLSA provides the district court with “the requisite procedural authority to manage the process of joining multiple parties in a manner that is orderly, sensible, and not otherwise contrary to statutory commands or the provisions of the Federal Rules of Civil Procedure.” Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). The court has a “responsibility to avoid the ‘stirring up’ of litigation through unwarranted solicitation” of potential opt-in plaintiffs, Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 267 (D.Minn.1991), but the district court should, “in appropriate cases,” exercise its discretion to facilitate notice to potential plaintiffs, Hoffmamu-La Roche Inc., 493 U.S. at 169. Section 216(b) does not define when “other employees [are] similarly situated” so that collective action certification, and the authorization of notice, is appropriate. 29 U.S.C. § 216(b). Similarly, the Eighth Circuit Court of Appeals has not defined what “similarly situated” means, or elaborated on when it is an “appropriate case[ ]” to facilitate notice. Salazar II, 2008 WL 782803, at *3. Courts across the country, however, have discussed various approaches to determine whether plaintiffs are similarly situated. The great majority of these courts — including most or all of the district courts within the Eighth Circuit — have championed a two-step approach to determine collective action certification under § 216(b). See Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir.2006) (recognizing that the two step approach is “typically used by courts in suits filed under 29 U.S.C. § 216(b)”); Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir.2001) (“The two-tiered approach to certification of § 216(b) opt-in classes ... appears to be an effective tool for district courts to use in managing these often complex cases, and we suggest that district courts in this circuit adopt it in future cases.”); Resendiz-Ramirez v. P & H Forestry, L.L.C., 515 F.Supp.2d 937, 940 (W.D.Ark.2007) (“The Eighth Circuit has not yet declared which approach it favors in deciding whether plaintiffs are similarly situated under 29 U.S.C. § 216(b), but the district courts in this circuit use the two-stage analysis.”). Because the Northern District of Iowa has artfully danced the “two-step” before, see, e.g., Salazar II, 2008 WL 782803 at * 3-4, and other circuit courts approve the use of this approach, see, e.g., Thiessen, 267 F.3d at 1105 (noting “there is little difference in the various approaches,” but that the two-step approach is “[a]rguably ... the best of the three”), and because neither party in this case has advanced an argument to apply a different approach, the court will follow the two-step approach to determine whether other employees are similarly situated for collective action certification under § 216(b), see Resendiz-Ramirez, 515 F.Supp.2d at 941 (“The Court is convinced that the more prudent approach is to use the two-stage certification analysis that is used by a majority of courts, including a majority of district courts in the Eighth Circuit.”). Nevertheless, the court believes the admonition by the Eleventh Circuit Court of Appeals is important: “Nothing in our circuit precedent, however, requires district courts to utilize this approach. The decision to create an opt-in class under § 216(b), like the decision on class certification under Rule 23, remains soundly within the discretion of the district court.” Hipp, 252 F.3d at 1219. The two-step approach to collective action certification “ ‘distinguishes between conditional class certification, generally made at the “notice stage,” and a final class certification determination made after discovery is largely completed.’ ” Dietrich, 230 F.R.D. at 577 (quoting Campbell, 2001 WL 34152094, at *2). Applying the two-part test, the Court first uses a lenient standard to determine whether similarly situated persons exist, and if appropriate, the class is conditionally certified. The second step occurs after notice, time for opting-in, and discovery have taken place. Applying a stricter standard, the Court makes a factual determination on the similarly situated question. The second inquiry is usually conducted upon a defendant’s motion for decertification. Freeman v. Wal-Mart Stores, Inc., 256 F.Supp.2d 941, 944 (W.D.Ark.2003) (citation omitted); see Resendiz-Ramirez, 515 F.Supp.2d at 940-41 (explaining the two-step approach). Whether during the first step/notice stage or second step/final stage, the burden remains on the plaintiffs to show that “other employees [are] similarly situated.” 29 U.S.C. § 216(b); see Frank v. Gold’n Plump Poultry, Inc., No. 04-CV-1018 (PJS/RLE), 2007 WL 2780504, at *2-3 (D.Minn. Sept. 24, 2007) (recognizing the plaintiffs’ burdens at the first and second steps). At the first step, or notice stage, “[t]o show conditional certification is warranted, the plaintiffs ‘need merely provide some factual basis from which the court can determine if similarly situated potential plaintiffs exist.’ ” Salazar II, 2008 WL 782803 at *5 (quoting Dietrich v. Liberty Square, L.L.C., 230 F.R.D. 574, 577 (N.D.Iowa 2005)). Although the burden at the first step is “more lenient,” and does not require existing plaintiffs to “show that members of the conditionally certified class are actually similarly situated,” Fast v. Applebee’s Int’l, Inc., 243 F.R.D. 360, 363 (W.D.Mo.2007), “plaintiffs must present more than mere allegations; i.e., some evidence to support the allegations is required,” Young v. Cerner Corp., 503 F.Supp.2d 1226, 1229 (W.D.Mo.2007). The supporting evidence should include “evidence that other similarly situated individuals desire to opt in to the litigation” because “ ‘[others’ interest in joining the litigation is relevant to whether or not to put a defendant employer to the expense and effort of notice to a conditionally certified class of claimants.’ ” Parker v. Rowland Express, Inc., 492 F.Supp.2d 1159, 1164-65 (D.Minn.2007) (quoting Simmons v. T-Mobile USA, Inc., No. H-06-1820, 2007 WL 210008, at *9 (S.D.Tex. Jan. 24, 2007)). In addition to “whether potential plaintiffs have been identified,” district courts outside of the Eighth Circuit have evaluated several other factors at this stage to determine the propriety of conditional certification, including “whether affidavits of potential plaintiffs have been submitted, whether there is evidence of a widespread discriminatory plan, and whether, as a matter of sound management, a manageable class exists.” Jimenez v. Lakeside Pic-N-Pac, L.L.C., 2007 WL 4454295, at *2 (W.D.Mich. Dec. 14, 2007) (citing Olivo v. GMAC Mortg. Corp., 374 F.Supp.2d 545, 548 (E.D.Mich.2004)). In sum, “[e]onditional certification in the first step ‘requires nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan.’ ” Young, 503 F.Supp.2d at 1229 (quoting Davis v. NovaStar Mortg., Inc., 408 F.Supp.2d 811, 815 (W.D.Mo.2005)). At the second step, or final stage, “[p]laintiffs seeking to maintain an opt-in class action bear the burden to show that they are similarly situated with respect to their job requirements and pay provisions.” Kautsch v. Premier Communications, No. 06-cv-04035-NKL, 2008 WL 294271, at *2 (W.D.Mo. Jan. 31, 2008) (citing Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir.1996)). This showing is usually required after a collective action has been conditionally certified and upon the defendant’s motion to decertify, Freeman, 256 F.Supp.2d at 944, or “after the close of discovery, or at least where ‘discovery is largely complete and the matter is ready for trial,’” Huang v. Gateway Hotel Holdings, 248 F.R.D. 225, 227 (E.D.Mo.2008) (quoting Hipp, 252 F.3d at 1218). Although the plaintiffs burden at this final stage is more strict than at the notice stage, the plaintiff need not show that opt in plaintiffs are “identically situated.” Fast, 243 F.R.D. at 363. The court considers three factors to determine whether plaintiffs remain similarly situated at the final stage. Smith, 404 F.Supp.2d 1144, 1150 (D.Minn.2005) (citing Thiessen, 267 F.3d at 1103). These factors include: the employment and factual settings of plaintiffs; (2) the various defenses available to defendants; and (3) considerations of fairness, procedure, and manageability. Id.; Kautsch, 2008 WL 294271, at *2. The district court must assess these factors in light of “the fundamental purpose of 29 U.S.C. § 216(b): (1) to lower costs to the plaintiffs through the pooling of resources; and (2) to limit the controversy to one proceeding which efficiently resolves ‘common issues of law and fact that arose from the same alleged activity.’” Kautsch, 2008 WL 294271, at *2 (quoting Moss v. Crawford & Co., 201 F.R.D. 398, 410 (W.D.Pa.2000)). Thus, in sum, the level of proof required at each stage in the FLSA collective action certification process is largely dependent upon the amount of information before the court. At the first step, when less information is before the court, plaintiffs simply need to come forward with a “factual basis,” Dietrich, 230 F.R.D. at 577, a “colorable basis,” Smith, 404 F.Supp.2d at 1149, or “substantial allegations,” that the existing plaintiffs and putative plaintiffs “were together the victims of a single decision, policy or plan,” Davis, 408 F.Supp.2d at 815. At the second step, the court has much more information and is in a position to “make a factual determination on the similarly situated question,” Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214 (5th Cir.1995), and therefore “plaintiffs must clear a higher hurdle to continue,” Frank, 2007 WL 2780504, at *3. The “stricter post-discovery standard” requires plaintiffs to convince the court that the factual record reveals putative plaintiffs are still similarly situated to existing plaintiffs. Smith, 404 F.Supp.2d at 1149. Finally, and importantly, whether at the first or second step in the § 216(b) collective action certification process, plaintiffs need not prove the merits of their claim. That is, plaintiffs do not have to show that the employer actually violated the FLSA. See Smith v. Heartland Automotive Servs., Inc., 404 F.Supp.2d 1144, 1148 (D.Minn.2005) (“[T]he Court does not consider the merits of Plaintiffs’ claims on a decertification motion....”); Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 680 (D.Colo.1997) (“[WJhether plaintiffs can meet their burden in the liability phase ... is irrelevant to the question of § 216(b) certification.”). B. Legal Analysis 1. First or second step? Both parties urge the application of the two-step approach to determine collective action certification, but the parties dispute which step should be undertaken at this time. Plaintiffs argue the court should base its analysis under standards of the first step, or the “notice stage,” because Plaintiffs seek conditional certification at this point and, although some discovery has taken place, the record is “woefully inadequate” to make a final decision. Dkt. # 59. Tyson argues the court should skip the first step and base its analysis under the standards of the second step, or “final stage,” “because considerable discovery has occurred and an ample factual record has been established.” Dkt. # 49. The parties have completed class discovery. Tyson deposed the six named remaining plaintiffs and twelve potential opt-in plaintiffs, and Plaintiffs deposed four Rule 30(b)(6) witnesses provided by Tyson. Tyson has also responded to twelve interrogatories, produced almost 3,000 pages of responsive documents, and provided payroll data from February 2004 through March 2007. In addition, over thirty employees submitted “declarations” on behalf of Tyson. Because of this limited, but substantial discovery, it is clear to the court that this case is not at a typical “notice stage.” See Parker, 492 F.Supp.2d at 1163 (“At the notice stage, the district court makes a decision — usually based only on the pleadings and any affidavits which have been submitted' — whether notice of the action should be given to potential class members.”). Thus, the court finds support for Tyson’s argument that a more demanding standard should be required of Plaintiffs at this point. See Campbell, 2001 WL 34152094, at *2 (finding merit in defendant’s contention “that the record in this case is beyond that which would warrant the leniency generally given to cases at the notice stage” because the action was “filed nearly a year and a half ago” and “[depositions of nearly all named plaintiffs have been taken, Defendants have responded to two sets of interrogatories, and affidavits in support and opposition to the current motion have been filed”); Smith v. T-Mobile USA, Inc., No. CV 05-5274 ABC (SSx), 2007 WL 2385131, at *4 (C.D.Cal. Aug. 15, 2007) (“Where substantial discovery has been completed, some Courts have skipped the first-step analysis and proceeded directly to the second step.”). However, it is also clear that not all information is before the court, and that Plaintiffs are merely requesting conditional certification at this time, for the first time. See Parker, 492 F.Supp.2d at 1164 (“Here, Plaintiffs seek an Order conditionally certifying this case as a collective action, in order to notify all potential plaintiffs of the pendency of this lawsuit and to provide them with the opportunity to opt in. Hence, the Court is at the first stage of the two-stage process.”). The court is persuaded by the sentiments of other district courts that “beginning with tier one of the analysis is the most equitable means of proceeding. ... [S]hould the court bypass tier one entirely, some potential plaintiffs might not become aware of the lawsuit and would not have an opportunity to join the suit.... The potential prejudice to plaintiffs of bypassing tier one thus is significant.” Gieseke v. First Horizon Home Loan Corp., 408 F.Supp.2d 1164, 1167 (D.Kan. 2006) (quoting Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 468 (N.D.Cal. 2004)). Therefore, the court does not believe a second stage — i.e., final stage— analysis is prudent at this point in the proceedings. Instead, the court believes the two step process should begin with the first step in this case. This conclusion, however, is procedural. The two step approach to collective action certification under § 216(b) has both procedural and substantive aspects. Procedurally, the two step approach allows a district court to conditionally certify a collective action among similarly situated plaintiffs, and then revise the certified collective action class later if necessary. Substantively, the two step approach allows a district court to first rely on “substantive allegations” when conditionally certifying a collective action, and then later make a factual determination about the propriety of the certified collective action class. While the court finds the procedural aspect of the two-step approach necessary in this case, it cannot overlook the almost six months of substantial class discovery that the parties have conducted and the valuable information before the court that is relevant to the certification of Plaintiffs’ collective action under the FLSA. See Dkt. #23. As a result, the court will apply what it believes is a common sense application of the two step approach in this case: The court will determine whether conditional certification of a collective action is appropriate by evaluating all the facts that have thus far been placed before it. Thus, procedurally, the court is not making any final decisions, and Tyson will have an opportunity to later decertify the class if the court approves conditional certification and authorizes notice. Furthermore, substantively, the court will ultimately use the more onerous second stage analysis to account for all the important facts learned through discovery that inform what putative plaintiffs, if any, are similarly situated to existing plaintiffs. Many other courts have done likewise, although not specifically recognizing the procedural/substantive difference. See Villanueva-Bazaldua v. TruGreen Ltd. Partners, 479 F.Supp.2d 411, 415 (D.Del.2007) (“District courts in other circuits have adopted an intermediate approach to the ‘similarly situated’ inquiry when the parties voluntarily engage in discovery prior to a decision on conditional certification.”); Jimenez, 2007 WL 4454295, at *3 (stating, because the parties had engaged in six months of pre-certification discovery, that “the Court will review Plaintiffs’ allegations and affidavits in conjunction with the evidence gleaned through discovery”); Thiessen v. General Electric Capital Corp., 996 F.Supp. 1071, 1080 (D.Kan.1998) (“Thus, the court adopts an ‘intermediate approach’ in analyzing the ‘similarly situated’ issue.”). 2. Conditional certification Plaintiffs request the court to conditionally certify and to approve notice to all potential collective action class members, which Plaintiffs define as: All current and former hourly production and support employees of Tyson Foods, Inc., or Tyson Fresh Meats, Inc.’s Storm Lake, Iowa, processing facility who have been employed at any time from February 7, 2004 to the present. Dkt. # 34, Exhibit A. Plaintiffs indicate February 7, 2004, because the complaint was filed on February 6, 2007, and the FLSA provides a maximum three year statute of limitations. See 29 U.S.C. § 255 (providing a three year statute of limitations for willful violations). Plaintiffs also indicate Tyson’s Storm Lake facility because the parties voluntarily agreed to dismiss Plaintiffs’ claims against Tyson’s De-nison facility. Dkt. #40. In their reply brief, Plaintiffs refine their proposed collective action class: “To be clear, Plaintiffs would define the certified collective action ‘class’ as including all hourly employees who: (1) don, doff, wash or sanitize any sanitary and protective clothing, equipment, and gear; and/or (2) maintain knives, steels and any other tools or equipment that are used in the production process.” Dkt. # 59. Of course, Plaintiffs’ defined collective action class must also be considered in light of Plaintiffs’ allegations in their FLSA claim. Plaintiffs allege that Tyson violated the FLSA by failing to pay its hourly employees in full. Specifically, Plaintiffs state that Tyson uses an “unlawful compensation system,” known as “gang time” or “line time,” that fails to compen