WILLIAM T. HART, District Judge.
This is a nationwide collective action alleging violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and an Illinois state law putative class action based on the application of an automatic 30-minute meal break deduction policy without ensuring that employees do not work through all or part of their meal break. This court has original jurisdiction over plaintiffs' FLSA claims pursuant to 29 U.S.C. § 216(b) and 28 U.S.C. § 1331. Jurisdiction over the state law claims purportedly exists pursuant to the Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. § 1332(d)(2), because the Illinois plaintiffs and members of the purported classes include citizens of a state different than one or more defendants and the matter in controversy exceeds the sum or value of $5,000,000. However, it would appear that jurisdiction under CAFA is excluded because more than two-thirds of the class members are citizens of Illinois,
Plaintiff Peter Bergman ("Bergman") filed this action against Kindred Healthcare, Inc., Kindred Chicago Lakeshore, and Doe defendants 1-10. Subsequently two other actions (one filed in this court and one transferred from the Eastern District of Michigan) were consolidated with this action adding plaintiffs Bobbie Cason ("Cason") and Lisa Smith ("Smith"). See Docket Entry 35, 45. Thereafter leave to file an amended complaint was granted adding defendant Kindred Healthcare Operating, Inc. ("KHOI"). As a result of the consolidations and amendments the defendants named in the Third Amended Complaint are Kindred Healthcare, Inc. ("KHI"); Kindred Healthcare Operating, Inc. ("KHOI"); Kindred Chicago Lakeshore ("Lakeshore"), a subsidiary of KHOI; and Kindred Hospitals East, LLC ("KHE"), which operates Kindred-Detroit. (For convenience the defendants will be referred to collectively as "Kindred.") Mira Bhuiyan, Jennifer Cabulong, Kenya Hawk, Ben Philip Ginsberg, Amelia Wesseh, and Lisa Pigecella subsequently consented to join the case. See Docket Entry 75, 76, 80, 89, 103. In 2012, Cason withdrew her personal claims without prejudice.
Kindred has approximately 55,000 employees in the United States. On January 12, 2007, there were approximately 10,000 hourly employees working at 74 Kindred facilities in 23 different states. Kindred Healthcare is the largest diversified provider of post-acute care services in the United States. Entities owned by KHOI are divided into three divisions: the Hospital Division, the Nursing Center, and the Rehabilitation Division.
It is alleged that this action is filed on behalf of phlebotomists, business office managers, admission coordinators and officers, receptionists, secretaries, housekeepers, custodians, clerks, porters, registered nurses, licensed practical nurses, nurses' aides, administrative assistants, anesthetists, clinicians, medical coders, medical underwriters, nurse case managers, nurse interns, nurse practitioners, practice supervisors, professional staff nurses, quality coordinators, resource pool nurses, respiratory therapists, senior research associates, operating room coordinators, surgical specialists, admission officers, student nurse technicians, trainers, transcriptionists, and all other non-exempt individuals who are employed at any of defendants' facilities and subject to the automatic meal break deduction policy.
Because of the represented magnitude of this case and the expenses it will and could impose, plaintiffs were granted more than 11 months to take discovery with respect to the certification issue. They have taken three Rule 30(b)(6) depositions and served two sets of interrogatories and requests for the production of documents. Defendants have produced over 5,800 pages of documents. Three requests for the extension of discovery have been granted. See Docket Entry 26, 40, 57, 88. Defendants have submitted 34 declarations of putative class members who represent 25% of the employees at Lakeshore. The parties have also submitted opposing charts analyzing the information gathered. All of this has been accompanied by over-sized briefs.
Plaintiffs propose an IMWL Class defined as:
Plaintiffs' proposed IWPCA Class definition is:
Alternatively, plaintiffs move for certification of a common law unjust enrichment claim class.
Today's ruling will only resolve FLSA collective action issues.
The FLSA provides that an action may be maintained against an employer by any one or more employees in behalf of himself and other employees similarly situated. Woods v. N.Y. Life Ins. Co., 686 F.2d 578, 580 (7th Cir.1982); Alvarez v. City of Chicago, 605 F.3d 445, 448 (7th Cir.2010). The conditional certification process is a procedure used in an FLSA collective action to determine whether there is sufficient merit in the charges to warrant that notice of eligibility to participate be sent to similarly situated employees in order that they be given an opportunity to opt into a collective action. Ervin v. OS Rest. Servs., Inc., 632 F.3d 971, 974 (7th Cir.2011). At this stage of the proceedings, plaintiffs must make a modest factual showing of common, unlawful conduct and provide some indication of harm to employees. Gibbs v. New Ashley Stewart, Inc., 2013 WL 1858561 *1 (N.D.Ill. May 2, 2013); Camilotes v. Resurrection Health Care Corp., 286 F.R.D. 339, 345 (N.D.Ill.2012).
The certification of an FLSA collective action typically proceeds in two stages. The first stage, which is now before the court, involves conditionally certifying a class for notice purposes. There is a low standard of proof. Myers v. Hertz, Corp., 624 F.3d 537, 555 (2d Cir.2010); Carter v. Ind. State Fair Comm'n, 2012 WL 4481348 *4 (S.D.Ind. Sept. 28, 2012); Curless v. Great Am. Real Food Fast, Inc., 280 F.R.D. 429, 433 (S.D.Ill.2012). Adair v. Wis. Bell, Inc., 2008 WL 4224360 *3 (E.D.Wis. Sept. 11, 2008). The court does not make merits determinations, weigh evidence, determine credibility, or specifically
Both sides' evidentiary submissions will be considered in determining whether there is a group of similarly situated employees who may be discovered by sending out an opt-in notice. In evaluating each side's submissions, it must be kept in mind that, despite the discovery that has been allowed, defendants still have greater access to evidence than plaintiffs and plaintiffs' modest showing need not be conclusive. In support of plaintiffs' conditional certification motion the following facts are before the court:
From January 2007 until May 2010, entities within the Hospital Division, outside of California, automatically deducted 30 minutes for the meal breaks of hourly employees. No entities in the Nursing Center Division or the Rehabilitation Division or any entities in California had 30 minutes automatically deducted for their meal breaks during this period of time. Since May 2010, all hourly employees working at all Kindred facilities have been required to clock out and then back in for their meal breaks. Plaintiffs have identified no evidence that anyone has missed a meal break without being paid after May 2010.
Bergman was employed as a staff registered nurse by Lakeshore from April 2007 to July 2009. Smith began working for Lakeshore in April 2009. Wesseh and Hawk are employed at Lakeshore. Cason worked as a registered nurse at Kindred-Detroit from March 2007 until the facility closed in May 2008.
The Employee Handbook sets forth Lakeshore's policy with respect to meal breaks and timekeeping.
Lakeshore employees are informed of its meal break policy at an orientation and provided with a copy of the Handbook. All are required to acknowledge having read the Handbook. A so-called missed punch form is used to record interrupted or missed meal breaks.
Bergman is a registered nurse who was employed at three Kindred facilities: Central, Lakeshore, and Montrose. He frequently missed meal breaks. Bergman was familiar with the missed meal break report form, but did not use it. He believed that his supervisors knew the situation. He was not discouraged by supervisors from using the form to record missed meal breaks, however. Bergman was told that meal breaks were not regularly scheduled and that he should "get them when you can." Bergman was often unable to take meal breaks because of his patients' clinical needs. Also, frequently there was no one else available to care for his patients. Bergman witnessed other employees miss meal breaks or have their meal interrupted. Other nurses expressed concerns about missing their meal breaks which Bergman heard.
Cason was employed as a registered nurse at Kindred-Detroit. She estimated that she was not able to take a meal break during at least half of the shifts she worked because of her workload. Cason was often interrupted during meal breaks because of patient emergencies and medication administration. She complained about missing meal breaks. Cason observed nurses in the acute care ward eating in patients' rooms. Cason stated that she never reported missed lunch breaks to her supervisor. She conceded that, had she done so, she would have been paid for the time missed.
Lisa Smith is a phlebotomist who worked at two Kindred facilities: Kindred Lakeshore and Kindred Northlake. She stated that she regularly worked during her meal breaks. There were times when her meal break was interrupted. Her supervisor made clear that the doctors were not getting the results on-time and it was her job to get the results to the doctor regardless of her meal break. Smith was informed by her supervisor, Vicki Benthine, that if she missed a meal break, she
The declaration of Wesseh states that she is employed in the lab unit at Lakeshore. She has been unable to take lunch breaks and her lunch breaks have been interrupted.
Smith and Cason stated that their supervisors would have no way of knowing whether they had worked through their meal breaks unless they reported the fact. No supervisor ever instructed Bergman, Smith, or Cason to work through meal break and not seek compensation for that work.
Bergman and Cason worked 12½-hour shifts. Bergman worked less than 38½ hours during the work week. There were many weeks when Cason worked less than 38½ hours as well as when she worked overtime. Smith worked 8½-hour shifts and her hours fluctuated.
None of the plaintiffs or opt-ins has records or other evidence to support their estimates of the number of missed or interrupted meal breaks.
The Lakeshore Handbook contains the following:
The FLSA provides that all time which employers permit to be worked must be compensated. 29 U.S.C. §§ 206, 207. Regulations implementing the law state: "Work not requested but suffered or permitted is work time.... The reason is immaterial. The employer knows or has reason to believe that he is continuing to work and the time is working time." 29 C.F.R. § 785.11. "[I]t is the duty of the
There is a series of health care cases that have considered conditional certification for auto-deduct policy claims as a violation of the FLSA. Cases considering certification are gathered in Creely, 789 F.Supp.2d at 820 n. 2.
Defendants rely on Frye v. Baptist Mem'l Hosp. Inc., 2010 WL 3862591 at *5 (W.D.Tenn. Sept. 27, 2010), aff'd by unpublished order, 495 Fed.Appx. 669, 673-74 (6th Cir.2012), and Cason v. Vibra Healthcare 2011 WL 1659381 *3 (E.D.Mich. May 3, 2011), for the proposition that their meal auto-deduct policy is lawful.
A recent case from this district with facts similar to the present case is DeMarco v. Nw. Mem'l Healthcare, 2011 WL 3510905 (N.D.Ill. Aug. 10, 2011). Conditional certification was granted without a rigorous review of the parties' presentations, leaving until a possible second stage review some of the arguments advanced by the defendant.
The district court cases cited by both sides turn largely on the factual showings and the courts' interpretations of the facts. It is not necessary or useful to discuss those cases in detail.
A fact which distinguishes this case from the cited cases is a provision in defendants' Handbook that states: "Clocked meals are rounded.
Viewing the facts based primarily on the showing made by the plaintiffs, conditional certification will be granted but limited. The showing made by the plaintiffs is essentially limited to the meal-break rule as experienced by nurses and hospital employees who are engaged in the direct care of patients. The nature of their interrupted meal breaks was affected by the demands of patient care. Notice will be sent to only those Hospital Division employees who are directly engaged in patient care. Such a limitation has been found to be appropriate. See DeMarco, 2011 WL 3510905 at *4 (N.D.Ill.); Colozzi v. St. Joseph's Hosp. Health Ctr., 595 F.Supp.2d 200, 208-09 (N.D.N.Y.2009); Ruggles v. WellPoint, Inc., 591 F.Supp.2d 150, 162-63 (N.D.N.Y.2008).
Plaintiffs request that the statute of limitations applicable to the FLSA claims be tolled for potential opt-ins. Equitable tolling may be applied if it is shown that (1) the party has diligently pursued his or her rights and (2) some extraordinary circumstance stood in the way and prevented timely filing. McQuiggin v. Perkins, ___ U.S. ___, 133 S.Ct. 1924, 1931-32, 185 L.Ed.2d 1019 (2013) (quoting Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010)). Equitable tolling is a judicial doctrine that is presumed to apply unless the applicable statute of limitations is jurisdictional. Holland, 130 S.Ct. at 2560 (quoting Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990)). Section 255(a) of Title 29 provides the two-year/three-year (willful) limitation period applicable to minimum wage and overtime claims. For opt-ins, 29 U.S.C. § 256(b) provides that the commencement of the action is when the opt-in files his or her written consent with the court. This is not the type of statutory scheme that overcomes the presumption in favor of equitable tolling, compare Holland, 130 S.Ct. at 2561, nor is it a jurisdictional limitation period. Chao v. Va. Dep't of Transp., 157 F.Supp.2d 681, 700 (E.D.Va.2001), aff'd in part, rev'd in part on other grounds, 291 F.3d 276 (4th Cir.2002). Courts have held that equitable tolling can apply to the § 255(a) limitation period. See Antonio-Morales v. Bimbo's Best Produce, Inc., 2009 WL 1591172 *1 (E.D.La. April 20, 2009).
Ordinarily, even when there are excessive briefs and exhibits to the briefs, this bench will rule on a motion within a few months after the motion becomes fully briefed. Unfortunately, through no fault of the existing or potential plaintiffs, there has been excessive delay in ruling on the pending motion. Plaintiffs filed their reply brief on June 30, 2011. In the usual course, a ruling would have occurred shortly thereafter. The long delay in issuing a ruling is an extraordinary circumstance that should not cause the opt-ins to lose out on the potential benefits of this lawsuit.
The running of the applicable statute of limitations will be tolled from June 30, 2011 until the date today's ruling is entered on the docket. No tolling will be applied prior to that date and, absent another unusual delay, there will be no further tolling for the time necessary to issue the opt-in notice and process any consent forms that are received. These are circumstances that are part of the ordinary litigating of an FLSA case, not extraordinary circumstances supporting further equitable tolling.
Although plaintiffs' pending motion for conditional certification states that a proposed notice to potential opt-ins is attached, no such proposed notice is provided with the motion. A proposed notice was attached to a previously filed motion. See Docket Entry 94-2. This notice has been examined and needs substantial modification.
Within 14 days of the date of today's ruling, plaintiffs shall submit a revised notice for approval by the court. To the extent it has not already been provided, within 21 days of today's ruling, defendants shall provide plaintiffs with a list of names and addresses of potential opt-ins. Notice is to be mailed out by no later than July 26, 2013. Consents to join the lawsuit should be filed with the court by no later than September 19, 2013.
Issues raised with respect to the certification of Rule 23(b) classes will be dealt with in a separate opinion and order.
IT IS THEREFORE ORDERED that plaintiff's motions for conditional certification [117, 123] are granted in part and denied in part. Defendants' motion for summary judgment [142] is denied without prejudice. Plaintiff's motion for equitable tolling [166] is granted in part and denied in part. The statute of limitations for opt-ins is tolled from June 30, 2011 to the date of entry of today's order. Within 14 days, plaintiffs shall submit a proposed notice for potential opt-ins. Within 21 days, defendants shall provide to plaintiffs a list of