Albines v. HotelEngine, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 25-cv-02409-CNS-NRN
MOISES ALBINES,
Plaintiff,
v.
HOTELENGINE, INC,
Defendant.
ORDER ON MOTION TO GRANT COURT-AUTHORIZED NOTICE PURSUANT TO
216(b) OF THE FAIR LABOR STANDARDS ACT (ECF No. 52)
N. Reid Neureiter
United States Magistrate Judge
This matter is before the Court on Plaintiff Moises Albine’s Motion for Court-
Authorized Notice Pursuant to Section 216(b) of the Fair Labor Standards Act (the
“Motion”), filed August 26, 2025. ECF No. 52. Defendant Hotel Engine, Inc. d/b/a Engine
(“Defendant” or “Engine”) filed a response on September 30, 2025. ECF No. 61. Plaintiff
filed a reply on October 14, 2025. ECF No. 66. The Court heard argument on November
3, 2025. Having considered the submissions and the arguments of the Parties, the
Court GRANTS Plaintiff’s Motion and APPROVES the proposed Notice as described
below.
I. Factual Background
Engine is a travel technology company offering businesses a platform to book
business travel, manage reimbursements, and monitor spending in one place, and
offering a marketplace where hotels, airlines, and car rental companies can gain
Case No. 1:25-cv-02409-CNS-NRN Document 78 filed 02/11/26 USDC Colorado
pg 1 of 25

2
bookings from customers. Engine takes a percentage of each booking as its “fee” for
use of its platform. ECF No. 68 at 1–2.
Plaintiff is a resident of Winter Garden, Florida. From approximately August 2022
to approximately February 2023, Plaintiff worked for Engine in Florida, remotely, as an
Account Manager, part of Engine’s sale force. ECF No. 68 at 3. He says he regularly
worked for more than 40 hours in a workweek but was not paid for the overtime hours
worked. For example, he asserts that during the week of November 14, 2022, he
worked approximately ten overtime hours without compensation. Id.
Plaintiff has brought this lawsuit to recover unpaid overtime compensation and
other damages for himself and other similarly situated individuals who worked for
Engine as exempt-classified Account Executives, Account Managers, Sales Associates,
and other similar positions—variously titled throughout the Amended Complaint as
“Sales Employees.” ECF No. 68 at 1. In Plaintiff’s Motion, employees working in these
sales roles are referred to as “Sales Representatives.” ECF No. 52 at 1 n.1.
Plaintiff alleges Engine employs these Sales Employees or Sales
Representatives to attract hotels, airlines, and car rental companies to its marketplace
and to sell its booking management platform to business clients for business travel
needs. Engine hires Sales Representatives to focus on different parts of the sales cycle.
Some Sales Representatives focus on bringing new hotels, airlines, and car rental
companies onto the platform, whereas others focus on finding new businesses to book
through Engine’s booking management platform. Id. at 2.
Plaintiff alleges that despite focusing on different parts of the sales cycle, Sales
Representatives perform, as their primary job duty, a similar mix of sales-related tasks.
Case No. 1:25-cv-02409-CNS-NRN Document 78 filed 02/11/26 USDC Colorado
pg 2 of 25

3
Sales Associates focus on attracting hotels, airlines, and rental car companies to
Engine’s platform by prospecting for, and cold calling, leads. They pitch participation in
Engine’s platform to these leads and sell subscription advertising and marketing
products. Account Executives focus on selling the booking management platform to
businesses to use for their business travel needs, by managing the full sales cycle, from
prospecting to close. They prospect for potential customers, cold call those businesses,
and pitch the platform to them. Account Executives then focus on increasing bookings
over the client’s first year on the platform by collaborating with Engine’s Account
Management team to foster growth in existing accounts. Account Managers carry out
the last part of the sales cycle: proactively identifying new revenue opportunities by
hunting within the existing account base to generate business and consistently exceed
quota. Id. at 7–8.
Plaintiff alleges that regardless of specific role, Sales Representatives primarily
perform their sales duties from the Colorado office or remotely from their homes and
rarely (if ever) meet in-person with potential customers. Id.
Plaintiff alleges that Engine set sales quotes and productivity metrics for its Sales
Employees to meet. ECF No. 68 at 7. Engine fostered a competitive environment,
encouraging its Sales Employees to work long hours to hit sales metrics and earn
commissions and incentive pay. Engine is permeated by a “hustle” and “grow or die”
culture. The Chief Executive Officer and Founder describes the culture as “intense.”
Engine frequently changed Plaintiff’s and other Sales Employees’ commission and
incentive pay structures and increased Plaintiff’s and other Sales Employees’ quotas,
which further encouraged Sales Employees to work more hours to exceed their quotas
Case No. 1:25-cv-02409-CNS-NRN Document 78 filed 02/11/26 USDC Colorado
pg 3 of 25

4
and ensure that they would satisfy any change in the pay structure. Id. Plaintiff claims
that based on these policies and incentives, Sales Employees at Engine regularly
worked overtime hours to meet Engine’s job requirements, communicate with
customers, and meet sales quotas and productivity metrics set by Engine. Id. Thus,
Plaintiff alleges that Engine had and has a policy and pattern or practice of requiring
Plaintiff and similarly situated Sales Employees to work in excess of 40 hours per
workweek, without overtime compensation, and as part of its regular business practice,
Engine has intentionally, willfully, and repeatedly engaged in a pattern, practice, and/or
policy that violates the FLSA. Id. at 8. It is alleged that Engine’s policy and pattern or
practice includes, among other things, willfully misclassifying Plaintiff and similarly
situated Sales Employees as exempt from the protections of federal overtime laws,
willfully failing to record all of the time that its employees worked for the benefit of
Engine, willfully failing to keep payroll records as required by the FLSA, and willfully
failing to pay its employees overtime wages for all of the overtime hours that they
worked. Id.
Plaintiff has submitted a sworn declaration in support of the Motion. See ECF No.
52-2. In that declaration, Plaintiff explains that as an Account Manager, his primary duty
was sales-related work, including performing routine customer service, retaining existing
client business, and convincing existing clients to increase bookings through the
platform or to book exclusively through Engine. Id. ¶ 2. He performed his work over
Zoom, the phone, and computer, and never met clients face-to-face. On beginning
employment with Engine, he participated in an orientation and training program that
lasted approximately two and a half weeks. During this period, the instructors provided
Case No. 1:25-cv-02409-CNS-NRN Document 78 filed 02/11/26 USDC Colorado
pg 4 of 25

5
training to Plaintiff, as well as to other Account Managers and Strategic Account
Managers, on the use of Engine’s software systems, prospecting methods, sales
techniques, and the products and services that they would be responsible for selling to
customers, in accordance with company standards. Plaintiff completed this training
alongside other Account Managers who began their employment at the same time. Id. ¶
4.
Engine provided Plaintiff with “battle cards”—documents that explained how
Engine’s platform was better than other booking management platforms—and scripts
with sample questions to ask customers that could lead to conversations where Plaintiff
would recommend to customers that they increase usage of Engine’s platforms. Id. ¶ 5.
Per Plaintiff’s declaration, he was required to meet certain metrics, such as a “churn
rate” of new business booked through his book of business compared against the
percentage of business that did not rebook or left the platform. He was also required to
contact every customer in his book of business at least once per month and provide
each customer will an annual recommendation of how they could increase usage of the
Engine booking platform. Engine changed Plaintiff’s sales metrics frequently throughout
Plaintiff’s employment. Id. ¶ 6.
Plaintiff was paid a base salary of $55,000 to $60,000 and was eligible to earn
commissions, which were based on the percentage of new bookings compared with the
percentage of bookings that left the platform from his book of business. Id. ¶ 9.
Plaintiff’s understanding was that he was classified exempt from overtime, and he
received no overtime pay for the overtime hours that he worked. Id. ¶ 10.
Case No. 1:25-cv-02409-CNS-NRN Document 78 filed 02/11/26 USDC Colorado
pg 5 of 25

6
In fact, Plaintiff regularly worked more than 40 hours a week. Working more than
40 hours a week was a routine and necessary part of the sales jobs at Engine. The
corporate “DNA” and messaging from the executives was “hustle” and “grow or die.” To
hit quota and avoid being among the lowest performing Account Managers, Plaintiff had
to work more than 40 hours per week. Id. ¶ 11.
Based on his observations and conversations with others, Plaintiff claims that
other Account Managers and Account Executives performed a similar range of duties
and were subject to comparable compensation policies. He knows this because he
worked directly alongside them, observed the nature of their work, and communicated
with them frequently through the Slack application. To the best of Plaintiff’s knowledge,
other Account Managers and Account Executives were also assigned similar
performance metrics and quotas. Additionally, the Account Managers and Account
Executives with whom he worked routinely worked in excess of 40 hours per week. He
knows this because he personally discussed work hours with certain Account Managers
and Account Executives, including conversations that extended into the evening, past
7:00 p.m. EST. Furthermore, it was common for Account Managers to perform duties on
scheduled days off and some weekends. These duties included responding to clients
via text message, calling hotels to ensure successful check-ins, and coordinating with
Engine staff to resolve customer issues. Id. ¶ 13.
Beyond his own affidavit, Plaintiff has submitted a number of other declarations
of Sales Employees or Representatives in support of the motion. These declarations are
generally consistent with Plaintiff’s declaration in confirming that Engine provided all the
Sales Employees with a set script outlining the Engine sales pitch; that Engine requires
Case No. 1:25-cv-02409-CNS-NRN Document 78 filed 02/11/26 USDC Colorado
pg 6 of 25

7
Sales Employees to meet certain metrics; that Engine required Sales Employees to use
common computer systems, tools, and sales techniques; that most Sales Employees
were hired at a base salary and were eligible to earn commissions; that Sales
Employees were classified as exempt from overtime and received no overtime pay for
the overtime hours worked; and that these Sales Employees regularly worked more
than 40 hours a week to complete all of their assigned tasks. See, e.g., ECF No. 52-3
(Decl. of Tyler Kelly—Engine Mid-Market Account Executive from July 2023 to March
2024); ECF No. 52-4 (Dec. of Kevin Thonkulpitak—Engine Senior Account Executive
from June 2023 to June 2024); ECF No. 52-5 (Decl. of Grant Southwick—Engine
Account Executive from January 2022 until November 2024); ECF No. 52-6 (Decl. of
Shane Figueroa—Engine Account Executive, Inside Sales, National Account Executive,
and Senior Account Executive, from February 2020 to May 2024); ECF No. 52-7 (Decl.
of Jordan Harrison—Engine Sales Associate from January 2023 to August 2023); ECF
No. 52-8 (Decl. of Jennifer Smith—Engine Account Manager from May 2022 to January
2023) (swearing that Engine “created a culture of fear that sales employees were never
going to hit their metrics or to avoid termination”).
II. Plaintiff’s Motion for Court-Authorized Notice
The Fair Labor Standards Act (“FLSA”) provides a private cause of action against
employers who violate its provisions and enables an employee to sue “for and in behalf
of himself . . . and other employees similarly situated.” 29 U.S.C. § 216(b). It further
specifies that “[n]o 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.” Id. In other words, unlike a Rule 23 class action, all
Case No. 1:25-cv-02409-CNS-NRN Document 78 filed 02/11/26 USDC Colorado
pg 7 of 25

8
plaintiff employees in an FLSA collective action must “opt-in” to the litigation in order to
be allowed to assert their own individual FLSA claims. In Hoffmann-LaRoche, Inc. v.
Sperling, 493 U.S. 165 (1989), the Supreme Court granted courts the discretion to
oversee the process by which collective action plaintiffs give notice of the litigation to
their similarly-situated co-workers, allowing the co-workers the opportunity to then opt
into the existing litigation. Court supervision of the process of notifying affected
employees and soliciting opt-in notices ensures that information received by employees
about the suit is “timely, accurate, and informative,” prevents “a multiplicity of duplicative
suits,” and enables the setting of deadlines for the submission of opt-in notices so as to
“expedite disposition of the action.” Id. at 172.
As in this case, the question of who (if anyone) should receive a Hoffmann-
LaRoche notice is often the subject of some dispute. The touchstone of that inquiry is
the FLSA’s collective action provision, which allows “other employees similarly situated”
to a named plaintiff to opt in to the named plaintiff’s existing suit. 29 U.S.C. § 216(b).
The “‘near universal practice’ of the district courts[ ] comes from the 1987 New
Jersey district court opinion in Lusardi v. Xerox Corporation,” which “laid out a two-step
process to determine, ‘on an ad hoc case-by-case basis,’ whether prospective opt-in
plaintiffs in a proposed collective are ‘similarly situated’ enough to satisfy the FLSA.”
Swarles v. KLLM Transp. Servs., L.L.C., 985 F.3d 430, 436 (5th Cir. 2021) (citing
Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987; and Thiessen v. Gen. Elec. Cap.
Corp., 267 F.3d 1095, 1102 (10th Cir. 2001)). Step one involves “‘an initial ‘notice stage’
determination that proposed members of a collective are similar enough to receive
notice of a pending action.” Id. District courts at this stage “base their decisions on the
Case No. 1:25-cv-02409-CNS-NRN Document 78 filed 02/11/26 USDC Colorado
pg 8 of 25

9
pleadings and affidavits of the parties” and “may require little more than substantial
allegations that the putative collective members were together the victims of a single
decision, policy, or plan.” Id. (internal quotation marks omitted). Step two occurs at the
conclusion of discovery, when the court decides, based on evidence produced in
discovery, whether the plaintiffs are “similarly situated” based on “(1) [the] disparate
factual and employment settings of the individual plaintiffs; (2) the various defenses
available to [the] defendant which appear to be individual to each plaintiff; and (3)
fairness and procedural considerations.” Id.
This standard and process has been adopted by the judges of this District. For
example, in Turner v. Chipotle Mexican Grill, Inc., 123 F. Supp. 3d 1300, 1309 (D. Colo.
2015), Judge John L. Kane concluded that the court should “presumptively allow
workers bringing the same statutory claim against the same employer to join as a
collective,” deferring questions of substantial similarity to a later date, just as Thiessen
did. Thus, Turner approved of issuance of a Hoffman-LaRoche notice to “all current and
former non-exempt hourly workers employed by Chipotle” where the allegations were
that managers routinely required employees to engage in off-the-clock work. Id. at
1301–02, 1309.
Cases like Thiessen and Turner posit relatively lenient standards governing
similarity for purposes of authorizing Hoffmann-LaRoche notices. See also Perez v.
Denco Construction LLC, Civ. No. 24-cv-02766-RMR-NRN, 2025 WL 2639210, at *2 (D.
Colo. Sept. 12, 2025) (approving conditional certification of collective of construction
workers who allegedly were not paid overtime and calling standard for conditional
certification “a lenient one”). But lenience does not mean a rubber stamp. There must
Case No. 1:25-cv-02409-CNS-NRN Document 78 filed 02/11/26 USDC Colorado
pg 9 of 25

10
be some prima facie indication that the FLSA violations the plaintiff complains of are
indeed occurring at the degree and scale the plaintiff alleges, “lest an individualized pay
grievance metastasize to a nationwide litigation based only on the strength of the
plaintiff’s say-so.” Quint v. Vail Resorts, Inc., No. 20-cv-03569-DDD-GPG, 2022 WL
17976798, at 7 (D. Colo. Nov. 22, 2022) recommendation accepted in part and rejected
in part on other grounds, 2023 WL 5564724 (D. Colo. July 11, 2023), and objections
overruled, 2023 WL 9060872 (D. Colo. Nov. 22, 2023).
The now-familiar “plausibility” standards of Fed. R. Civ. P. 12(b)(6), as articulated
in Ashcroft v. Iqbal, 556 U.S. 662, 677–84 (2009), are a fair burden to measure a
plaintiff’s claims against. The scope of the Hoffmann-LaRoche notice must be limited to
those similarly-situated individuals whose potential FLSA injuries are plausibly alleged
in the complaint or in other evidence in the record.
To make that determination, the Court examines the record, discarding
allegations that are “mere labels and conclusions” and “formulaic recitation of the
elements of a cause of action,” instead looking for “sufficient factual matter [that,]
accepted as true, . . . allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Bledsoe v. Carreno, 53 F.4th 589, 607
(10th Cir. 2022) (citing Iqbal, 556 U.S. at 678); see also Quint, 2022 WL 17976798, at
*7. Courts in this circuit regularly authorize notice based on the pleadings coupled with a
small number of declarations. See, e.g., Lechot v. Powerstroke Well Control, Inc., No.
19-cv-02315-DDD-STV, 2020 WL 10818364, at *3 (D. Colo. Mar. 9, 2020) (authorizing
notice based on complaint and one declaration); Kovacs v. G4S Secure Sols. (USA)
Inc., No. 20-cv-3180-RMR-KMT, 2022 WL 1402097, at *2 (D. Colo. Jan. 18, 2022)
Case No. 1:25-cv-02409-CNS-NRN Document 78 filed 02/11/26 USDC Colorado
pg 10 of 25

11
(complaint and three declarations); Lysyj v. Milner Distrib. All., Inc., No. 13-cv-01930-
RM-MJW, 2014 WL 273214, at *3 (D. Colo. Jan. 24, 2014) (complaint and one
declaration).
In deciding whether to conditionally certify and send out the notice, “the court
does not resolve factual disputes, decide substantive issues going to the ultimate
merits, or make credibility determinations.” Bradford v. Logan’s Roadhouse, Inc., 137 F.
Supp. 3d 1064, 1072 (M.D. Tenn. 2015) (citation and internal quotation marks omitted).
Courts deny conditional certification in instances where the complaint is wholly
conclusory in nature, the supporting affidavit relies on hearsay from unidentified
sources, or the nature of the violation is rendered ambiguous by the particular
circumstances of the only named plaintiff. See, e.g., Saarela v. Union Colony Protective
Servs., Inc., No. 13-cv-01637-MSK-MJW, 2014 WL 3408771, at 2–4 (D. Colo. July 14,
2014) (dismissing motion for conditional certification without prejudice and instructing
the plaintiff he could renew his request upon a more substantial showing that the
defendant company’s alleged failure to pay overtime to plaintiff was indicative of a policy
that applied equally to other similarly-situated employees). The standard for conditional
certification has been described as a “minimal burden,” see Lsysyj v. Milner Distrib.
Alliance, Inc., No. 13-cv-01930-RM-MJW, 2014 WL 273214 (D. Colo. Jan. 24, 2014),
and its application “typically results in class certification.” Brown v. Money Tree, 222
F.R.D. 676, 679 (D. Kan. 2004); see also Stallings v. Antero Resources Corp., No. 17-
cv-01939-RM-NYW, 2018 WL 1250610, at *3 (D. Colo. March 12, 2018).
Plaintiff argues that he has met the modest factual threshold showing needed to
justify the sending of the notice. Allegations in the Amended Complaint are supported
Case No. 1:25-cv-02409-CNS-NRN Document 78 filed 02/11/26 USDC Colorado
pg 11 of 25

12
with declarations of eight former Sales Representatives detailing consistent experiences
at Engine, regardless of location, as well as Engine’s own corporate documents,
including job postings, offer letters, and a handbook and culture memo. Plaintiff argues
that this evidence shows that Engine’s Sales Representatives are paid in a similar
fashion (salary plus commissions), are uniformly classified as exempt, and have the
same primary job duties. ECF No. 52 at 16. In terms of whether the Sales
Representatives share similar job duties, Plaintiff argues that Engine’s uniform job
descriptions, coupled with the multiple declarations from Sales Representatives across
four states, show that the Sales Representatives are performing the same non-exempt
sales duties: selling Engine’s booking management platform. Id. at 18.
Plaintiff seeks to send the notice to the potential collective via U.S. mail, email,
text message, and the LinkedIn messaging service. Plaintiff argues that notice via
email, text message, and LinkedIn is appropriate in the instant situation given that the
potential collective members are mostly young professionals who use more modern
modes of communication than U.S. mail and even regular email alone. Plaintiff further
requests that notice be available on a standalone website through which opt-ins can
electronically submit the necessary opt-in forms. Plaintiff also asks that a reminder
notice be authorized to those who have not returned the opt-in form half-way through
the notice period.
Plaintiff seeks a 90-day opt-in period and that notice be authorized to Sales
Representatives nationwide who worked for Engine since May 6, 2022, three years
before the filing of the complaint. Plaintiff argues that a three-year notice period is
appropriate as Engine’s violations of the FLSA were willful.
Case No. 1:25-cv-02409-CNS-NRN Document 78 filed 02/11/26 USDC Colorado
pg 12 of 25

13
III. Engine’s Opposition to the Proposed Notice
Engine objects to the sending of the proposed notice in part because Plaintiff
worked as an Account Manager, only, and never worked as an Account Executive or
Sales Associate. Engine complains that Plaintiff is seeking conditional certification and a
notice to be sent to all of Engine’s Sales Employees, regardless of their title, the work
they performed, where they worked, who they worked under, or the compensation they
received. ECF No. 61 at 2. Engine argues that “[u]nder any applicable standard for
conditional certification, Plaintiff cannot establish that he is similarly situated to the sales
employees he seeks to represent.” Id. This is because, per Engine, the sales
employees’ experience at Engine varied drastically based on individual circumstances.
None were subject to a single FLSA-violating plan or policy, and each Sales Employee
had disparate employment experiences relevant to Engine’s exemption defenses. Id.
Engine argues that these factual differences will necessitate the presentation of
individualized evidence as to whether each sales employee was properly classified as
exempt and the hours he or she worked. Id.
Engine also argues that the Court should use a stricter standard for deciding
whether to send out the Hoffman-La Roche notice. Engine is fearful that using an
“overly permissive” notice standard will allow Plaintiff to artificially expand the size of the
collective, thereby increasing the pressure to settle, regardless of the merits of the
action. Id. at 4. Instead, Engine argues that the Court should adopt a “gatekeeping
framework” espoused by the Fifth Circuit, which requires the assessment at the outset
as to whether the plaintiffs are actually similarly situated. See id. at 5–6 (citing Swales v.
KLLM Trans. Servs., LLC, 985 F.3d 430, 434 (5th Cir. 2021)).
Case No. 1:25-cv-02409-CNS-NRN Document 78 filed 02/11/26 USDC Colorado
pg 13 of 25

14
Engine’s primary attack on Plaintiff’s request for conditional certification for notice
purposes is that the proposed collective consists of a class composed of three separate
and discrete roles, two of which Plaintiff did not work in. See id. at 7-8. Plaintiff worked
only as an Account Manager remotely in Florida. And yet he seeks to represent not only
current and former Account Managers but also Account Executives and Sales
Associates. Engine argues that these roles are very different and Plaintiff cannot be
deemed to be “similarly situated” to Sales Employees who did not share his role.
Engine has submitted the declaration of Jordan Epstein, currently Engine’s Vice
President of Revenue, who started with the company as an Account Executive. ECF
No. 61-2. Epstein oversees all sales roles and functions at Engine, and asserts he is
familiar with the duties, responsibilities, and compensation structure of Engine’s
Account Executives, Account Managers, and Sales Executives. These three job
categories are broad classifications of employees that differ in terms of rank,
experience, compensation, oversight, and duties and responsibilities. Id. ¶¶ 4–5. By
example, Epstein states that Account Executives have a distinct commission policy,
which is further differentiated by sub-roles in the Account Executive job classification,
such as Account Executives, Senior Account Executives, National Account Executives,
and Senior National Account Executives. Id. ¶ 9. These sub-roles apparently vary in
terms of oversight, quotas, incentives, compensation structure, rank, and benefits. For
example, there are no performance metrics expectations related to the number of calls
placed by National Account Executives and Senior National Account Executives. Id. ¶
10. In addition, many Account Executives, but not all, earn total annual compensation
Case No. 1:25-cv-02409-CNS-NRN Document 78 filed 02/11/26 USDC Colorado
pg 14 of 25

15
inclusive of commissions that exceeds $107,432—which is the standard for a highly
compensated employee who may be exempt from overtime rules. Id. ¶ 11.
By contrast, Account Managers at Engine focus on onboarding and growing
existing accounts assigned to them by the Account Executives. Their role is primarily
customer-service focused, with a greater emphasis on relationship management than
on direct sales, in contrast to Account Executives and Sales Executives. Account
Managers are paid a base salary, starting at $60,000 per year, with exact amounts
determined by experience. Account Managers are subject to distinct commission
policies and performance metrics, which vary across sub-roles based on seniority—
Small Business Account Managers, Mid-Market Account Managers, Enterprise Account
Managers, and Strategic Account Managers. Id. ¶¶ 12–14. Some Account Managers
also earn total annual compensation, inclusive of commissions, that exceeds $107.432.
Id. ¶ 16.
As compared to Account Executives and Account Managers, Sales Executives
are one unified team without different sub-roles and levels. A Sales Executive who
meets performance metrics can be promoted to the role of Account Executive. A limited
number of Sales Executives make more than $107,432 in annual compensation. Id. ¶¶
18–19.
Epstein states that the three broad categories of “sales” roles are not governed
by a uniform compensation or commission policy. Each role has its own distinct
compensation structure. Id. ¶ 20. Epstein also relates that Engine continually updates
and revises its compensation policies, including commission structures, job titles,
descriptions and responsibilities. As a result, a Sales Employee from 2022 to 2024 may
Case No. 1:25-cv-02409-CNS-NRN Document 78 filed 02/11/26 USDC Colorado
pg 15 of 25

16
have had substantially different sales experience and title compared to a sales
employee starting now. Id. ¶ 23.
Epstein says that any minimum performance metrics established by Engine “can
be reasonably achieved within a standard 40-hour workweek,” and, in his experience,
“most sales employees do not work over 40 hours each week.” Id. ¶ 26.
Engine argues that Plaintiff’s proposed putative class encompasses hundreds of
employees in at least a dozen distinct roles, spread across approximately 30 states,
reporting to different supervisors, and subject to varying compensation structures and
evaluation systems. All of these different characteristics mean two things. First, it is
difficult to conclude that all these differently situated employees were subject to a single
policy or practice. Second, in terms of determining whether Engine actually violated the
FLSA with respect to these various categories and subcategories of employees, there
will need to be an individualized assessment of, for example, whether the employees
exceeded the $107,432 compensation threshold for a highly compensated employee,
above which overtime need not be paid, see 29 C.F.R. § 541.601, or whether other
exemptions, such as the administrative exemption,1 to overtime rules might apply.
Engine maintains that the applicability of exemptions will hinge on each sales
employee’s duties, levels of discretion, and exercise of independent judgment—factors
which vary greatly from employee to employee—making conditional certification
1 The administrative exemption applies where the employee’s primary duty is (1)
“the performance of office or non-manual work directly related to the management or
general business operations of the employer or the employer’s customers,” and (2)
“includes the exercise of discretion and independent judgment with respect to matters of
significance.” 29 C.F.R. §541.200; see also 29 C.F.R. §541.201(defining work “directly
related to management or general business operations”).
Case No. 1:25-cv-02409-CNS-NRN Document 78 filed 02/11/26 USDC Colorado
pg 16 of 25

17
inappropriate. ECF No. 61 at 14–15 (citing Jonites v. Exelon Corp., 522 F.3d 721, 725-
26 (7th Cir. 2008)). Engine argues that the proposed collective is “hopelessly
heterogeneous” because of the myriad and distinct legal and factual issues, and
conditional certification should be denied. Id. at 15–16.
Engine also strongly disputes that the proposed collective of employees was
subject to a common policy or plan that violated the FLSA. Id. at 16–17. Engine says
the employees were all properly classified as exempt as either highly-compensated
employees or under the administrative exemption, and even if certain employees were
entitled to overtime (which Engine denies), many never worked more than 40 hours per
week and therefore were not owed overtime compensation in any event. Id. Per Engine,
conclusory declarations that Sales Employees worked over 40 hours per week, or that
Engine’s culture encouraged this, do not constitute “substantial allegations” that the
Plaintiff or those he seeks to represent were similarly situated or were together the
victims of a single FLSA-violating decision, policy, or plan. Id. at 17.
Finally, Engine takes issue with the proposed notice and dissemination methods.
Engine believes the proposed notice is “overburdensome and unnecessary.” Engine
also argues that most current employees should be excluded from any collective
because they are subject to arbitration agreements with class and collective action
waivers. Id. at 19.
IV. Decision
The Court rejects Engine’s invitation to use a more stringent “gate-keeping”
approach to determine whether employees are similarly situated for notice purposes.
The Court instead applies the accepted general practice of this District that the standard
Case No. 1:25-cv-02409-CNS-NRN Document 78 filed 02/11/26 USDC Colorado
pg 17 of 25

18
for conditional certification should be a two-step process and should be “lenient.” See
Wilfong v. TTEC Servs. Corp., No. 24-cv-01076-CNS-KAS, 2025 WL 580474, at *2 (D.
Colo. Feb. 21, 2025); Morris v. MPC Holdings, Inc., 2021 WL 4124506, at *2 (D. Colo.
Sept. 9, 2021) (rejecting invitation to depart from well-established Tenth Circuit
precedent applying the two-step conditional certification process for the more stringent
approach adopted by the Fifth Circuit in Swales).
At the notice stage, a plaintiff must offer “nothing more than substantial
allegations that the putative [collective action] members were together the victims of a
single decision, policy, or plan.” Thiessen, 267 F.3d at 1102. The Court concludes that
Plaintiff has met the relatively low threshold for conditional certification, and will approve
the sending of the notice to the proposed collective of “all Sales Employees,” including
Account Executives, Account Managers, Sales Associates.
The Court finds that Plaintiff, through his First Amended Complaint, his affidavit,
and accompanying supporting documents and numerous other affidavits, has
adequately alleged that he and other Sales Employees were the subject of common
plan or policy. Specifically, it appears from the allegations and affidavits (and is not even
disputed by Engine) that all Sales Employees, regardless of title or position, were
deemed to be exempt from the FLSA’s overtime requirements and therefore were not
paid overtime when they worked more than 40 hours per week. This may have been
because they were highly compensated or because Engine decided that the
administrative exemption applied to the positions. But the across-the-board declaration
that all Sales Employees were exempt is certainly a company-wide policy. All Sales
Employees shared common job duties of selling Engine’s products. They were all paid a
Case No. 1:25-cv-02409-CNS-NRN Document 78 filed 02/11/26 USDC Colorado
pg 18 of 25

19
base salary plus commission. All seem to have been subject to an aggressive corporate
culture where a failure to achieve certain sales metrics could result in termination,
creating an environment where unpaid overtime work would been expected or required
to hit sales quotas. The affidavits submitted by Plaintiff and other Sales Employees
span at least six job titles or job ranks, across four locations supervised by 16
managers, and indicate that the employees all worked overtime and that their managers
knew they were working overtime.
At this first stage, the Court will not consider the various factual arguments raised
by Engine in opposing the Motion. See Perez, 2025 WL 2639210, at *4 (“The court does
not weigh evidence, resolve factual disputes or rule on the merits of plaintiffs’ claims
during the notice stage.”) (citation omitted). Instead, it is appropriate to defer questions
relating to disparate factual and employment settings of the individual plaintiffs to the
second stage decertification process. See Thiessen, 267 F.3d at 1103. There may be
some heterogeneity among the proposed collective. There may be some members of
the collective who did make enough money to qualify for the highly compensated
exemption. But Engine will be able to test those particulars at the second stage, after
the collective has been given notice of this lawsuit and given the chance to participate.
See Wilfong, 2025 WL 580474, at *4 (“[W]hether the opt-in Plaintiffs had different
managers and worked on different client contracts is more appropriate for the
decertification stage.”); Coldwell v. Ritecorp Env’t Prop. Sols., No. 16-cv-01998-NYW,
2017 WL 4856861, at *4 (D. Colo. July 20, 2017) (“The Tenth Circuit has cautioned the
trial court to avoid focusing on merits of the underlying [collective] action in making
[conditional] certification decisions.”) (citing Adamson v. Bowen, 855 F.2d 668, 676
Case No. 1:25-cv-02409-CNS-NRN Document 78 filed 02/11/26 USDC Colorado
pg 19 of 25

20
(10th Cir. 1988)); Gray v. Delta Cnty. Mem’l Hosp. Dist., No. 19-cv-02938-RBJ, 2021
WL 1329263, at *5 (D. Colo. Mar. 1, 2021) (“[T]he precise hours of uncompensated
overtime, go to individual damages and not whether conditional certification is
warranted.”).
V. The Notice—To Whom It Should Be Sent and its Form.
Having determined that Plaintiff has met the relatively low threshold for
conditional certification to send out the notice, the question becomes to whom the notice
should be sent, what should the notice contain, and the timing.
The Court agrees with the Plaintiff that notice should go to all Sales Employees
nationwide, including in the State of Colorado. Plaintiff’s complaint has been amended
to include Colorado-resident employees in the proposed collective.
Similarly, notice should go to all Sales Employees, even where Engine has an
argument that some percentage of those employees may be subject to arbitration
agreements. The issue of arbitration may be raised at the second stage of the
certification analysis. See Judd v. Keypoint Gov’t Sols., Inc., No. 18-cv-00327-RM-STV,
2018 WL 7142193, at *6 (D. Colo. Dec. 4, 2018) (explaining that “the better course” is to
provide notice to all potential class members and later determine whether arbitration is
to be compelled); Beattie v. TTEC Healthcare Sols., Inc., No. 18-cv-3098-RM-NRN,
2019 WL 2866559, at *1 (D. Colo. July 3, 2019) (granting conditional certification and
sending notice to all members of the collective, even though some members of the
collective had signed arbitration agreements). The case of Brayman v. KeyPoint
Government Solutions, No. 18-cv-0550-WJM-NRN, 2019 WL 3714773 (D. Colo. August
7, 2019), cited by Engine, is distinguishable because in that case there were thousands
Case No. 1:25-cv-02409-CNS-NRN Document 78 filed 02/11/26 USDC Colorado
pg 20 of 25

21
of potential opt-in collective members who were subject to arbitration agreements, some
had already tried to opt-in, and the defendant had already moved to compel arbitration
with respect to the opt-ins who had signed arbitration agreements. So, the Court was
able to decide the question of the scope of the notice while simultaneously deciding the
arbitration question, concluding that it would not be appropriate to “inform persons
subject to the arbitration agreement that they have a right to join a collective action
when they have prospectively waived that right.” 2018 WL 3714773, at *8. Those
circumstances do not apply to the instant case.
The Court also agrees that the notice should reflect the three-year period prior to
the filing of the complaint in this case. To the extent that the statute of limitations may
bar some of these claims, the issue can be decided later, but at the very least, potential
opt-ins should first have an opportunity to receive notice and raise arguments regarding
equitable tolling, if appropriate. See Conejo v. Sellan Structural Erectors, LLC, No. 23-
cv-2930-SKC-STV, 2025 WL 872494, at *2 (Mar. 20, 2025) (“Plaintiffs may distribute
the notice to those members of the collective who worked for Defendants within three
years prior to the date of the filing of this action.”); German v. Holtzman Enters., Inc.,
No. 19-cv-03540-PAB-STV, 2021 WL 1087718, at *3 (D. Colo. Mar. 22, 2021)
(“[S]tatute of limitations arguments are better suited for later stages of the litigation.”).
As to the form of notice, the Court approves the revised (redlined) notice
submitted with Plaintiff’s reply brief with modifications described below, finding that (with
the specified modifications) the notice is fair and accurate. The approved form of notice
is ECF No. 66-2 (redlined form of notice).
Case No. 1:25-cv-02409-CNS-NRN Document 78 filed 02/11/26 USDC Colorado
pg 21 of 25

22
The Court agrees that it is not necessary to include information in the notice itself
that Sales Employees could be responsible for paying fees and costs, as it could
discourage putative members from joining the litigation and would run contrary to the
FLSA’s remedial purposes. See Levine v. Vitamin Cottage Nat. Food Markets Inc., No.
20-cv-261-STV, 2020 WL 6546734, at *5 (D. Colo. Nov. 6, 2020) (noting chilling effect
of such language); Abdulina v. Eberls Temp. Servs. Inc., No. 14-cv-00314-RM-NYW,
2015 WL 12550929, at *7 (D. Colo. April 27, 2015) (declining to issue similar warning
because it would have a chilling effect), report and recommendation adopted as
modified, 2015 WL 4624251 (D. Colo. Aug. 4, 2015). However, the notice should
include language explaining that potential opt-in members may have discovery
obligations and they may contact Plaintiff’s counsel if they have questions about
those obligations. See Levine, 2020 WL 6546734, at *5.
The notice should also inform the members of the collective that they may
hire their own lawyer if they want.
The Court also agrees with Plaintiff that modern technological means of
disseminating the notice, beyond regular mail and e-mail, such as via text message and
LinkedIn, are appropriate under these circumstances, where the potential opt-ins are
tech-savvy sales representatives and account managers who apparently used LinkedIn
in their work for Engine. See Conejo, 2025 WL 872494, at *2 (allowing for e-mail and
text message as forms of notice given this “technology-driven age”). Engine complains
that “anything more” than regular mail or e-mail is “excessive and unnecessary under
the circumstances.” ECF No. 61 at 20. But Engine makes no argument that there is any
downside to sending out notice via other methods. The only downside that the Court
Case No. 1:25-cv-02409-CNS-NRN Document 78 filed 02/11/26 USDC Colorado
pg 22 of 25

23
can perceive of using these additional methods is that more people will learn of their
right to seek redress for violations of federal labor law, which is no downside at all. The
Court rejects Engine’s suggestion that using multiple methods of notice somehow
constitutes judicial endorsement of the merits of the claim or a “high pressure campaign
to join the collective.” See id. at 21. However, all forms of notice, including any
notice issued via text message or LinkedIn must include a statement that Engine
denies the allegations.
The Court agrees with Plaintiff that a 90-day opt-in period is appropriate under
these circumstances, with a reminder notice sent after 45 days. A reminder ensures
they are given an opportunity to vindicate their rights. Morris v. MPC Holdings, Inc., No.
20-cv-2840-CMA-NYW, 2021 WL 4124506, at *3 (D. Colo. Sept. 9, 2021) (a reminder
“will serve the purpose of helping members of the collective exercise their rights”).
VI. Conclusion
Therefore, upon consideration of Plaintiff’s Motion for Court-Authorized Notice
Pursuant to Section 216(b) of the Fair Labor Standards Act, ECF No. 52, Defendant’s
opposition thereto, ECF No. 61, and all other pertinent parts of the record, IT IS
HEREBY ORDERED that the Motion is GRANTED, as follows:
Plaintiff is authorized to issue notice to putative Collective Members who worked
as exempt-classified Sales Representatives for Engine in the United States at any time
between May 6, 2022 and the present (“putative Collective Members”). “Sales
Representatives” are defined as individuals who work or worked as inside salespeople,
including in the job titles Account Executive, Account Manager, and Sales Associate,
and other similarly situated roles, however variously titled, nationwide.
Case No. 1:25-cv-02409-CNS-NRN Document 78 filed 02/11/26 USDC Colorado
pg 23 of 25

24
Within 21 days of this Order, Engine shall produce to Plaintiff a computer
readable data file containing names, last known mailing addresses, last known personal
telephone numbers, last known personal email addresses, social media account
information for LinkedIn (if known), work locations, and dates of employment as Sales
Representatives in each relevant job title and at each location, for all potential Collective
Members.
Plaintiff’s Proposed Notice and the plan for its distribution are approved, with the
modifications described above. In particular, the Notice and Consent to Join Form, in a
form substantially similar to the documents found at ECF No. 66-2 (redlined versions of
Notice and Consent to Join forms), with the modifications described above and with
appropriate adjustments for medium, shall issue to putative Collective Members via U.S.
Mail, email, and text message within 10 days of the receipt of the data from Engine.
Putative Collective Members will have 90 days from the mailing of the Notice to
return Consent to Join Forms (or in the event of re-mailings, 90 days from the re-
mailing).
Halfway through the 90-day period, a reminder notice shall issue to putative
Collective Members who have not yet returned Consent to Join Forms, via reminder
postcard, email, and text message. The information set forth in the Notice shall also be
posted on a standalone website, through which putative Collective Members can
electronically submit Consent to Join Forms.
Dated this 11th day of February, 2026.
Case No. 1:25-cv-02409-CNS-NRN Document 78 filed 02/11/26 USDC Colorado
pg 24 of 25

25
BY THE COURT:
N. Reid Neureiter
United States Magistrate Judge
Case No. 1:25-cv-02409-CNS-NRN Document 78 filed 02/11/26 USDC Colorado
pg 25 of 25