SUSAN RICHARD NELSON, District Judge.
This matter is before the Court on Defendant's Objections [Doc. No. 93] to the April 10, 2014 Report and Recommendation ("R & R") on Plaintiffs' Motion for Conditional Collective Action Certification. The Magistrate Judge recommended that the motion be granted in part and denied in part. For the reasons set forth below, Defendant's objections are sustained in part and overruled in part, and the Court adopts the R & R in part.
The factual and procedural background of Plaintiffs' case is well documented in the Magistrate Judge's R & R and is incorporated herein by reference.
Defendant operates more than 1,500 Mexican food restaurants, in 43 states and the District of Columbia, as well as internationally. (Gottlieb Decl. [Doc. No. 50] ¶¶ 4, 7.) Defendant's domestic restaurants are divided into seven geographic regions, and regional directors or executive team directors are responsible for the operations of the restaurants within their region. (Id. ¶¶ 8-9.) The staffing in each restaurant may include, in order of descending authority, a general manager, one or more apprentice managers, one or more service managers, one or more kitchen managers, and 15 to 35 crew members. (Id. ¶ 13.) Service managers, kitchen managers, and crew members are paid on an hourly basis. (Id. ¶ 18.) Defendant currently employs more than 40,000 hourly employees in the United States, approximately 1,600 of whom work in Minnesota. (Id. ¶ 17.) However, in any given year, Defendant employs roughly 90,000 hourly employees in the United States. (Id.)
Defendant has a formal "timekeeping/time punch policy," which states that "[a]ll hourly employees are paid for all time worked. This is the law and Chipotle's policy." (Id., Ex. 1 (Crew Handbook), at 22; id., Ex. 3 (Restaurant Management Handbook), at 19.)
The named Plaintiffs are each current or former hourly-paid employees at Defendant's Crystal, Minnesota restaurant. (See Supplemental Harris Decl. [Doc. No. 64] ¶¶ 2-3; Supplemental Caldwell Decl. [Doc. No. 63] ¶ 2; Hobbs Decl. [Doc. No. 39] ¶¶ 3-5; Evenson Decl. [Doc. No. 40] ¶¶ 3-5; Gottlieb Decl. ¶¶ 20-23.)
(Id. ¶ 56.)
Plaintiffs filed their motion for conditional collective action certification on October 23, 2013, seeking conditional certification of the following class:
(Mem. in Supp. of Pls.' Mot. for Conditional Collective Action Certification and for Judicial Notice to Class [Doc. No. 35] ("Pls.' Mem."), at 1-2.) In support of their motion, they each submitted a declaration stating that they had been "forced to work off the clock." (Harris Decl. [Doc. No. 37] ¶ 6; Caldwell Decl. [Doc. No. 38] ¶ 6; Hobbs Decl. ¶ 6; Evenson Decl. ¶ 6.) Plaintiffs Harris and Hobbs stated that they were not compensated for time worked after being made to punch out at the end of a shift, that Defendant's timekeeping system would automatically punch them out even when they continued working, that Defendant would cut their hours for the following week if they complained about not being paid for all of the hours they worked, and that they witnessed other employees being subjected to the same treatment. (Harris Decl. ¶¶ 7-10; Hobbs
In addition to these declarations, Plaintiffs submitted copies of three complaints that were filed with the Minnesota Department of Labor & Industry (collectively, the "DOLI Complaints"). (See Williams Aff. [Doc. No. 36] ¶ 4 & Ex. C.) The first complaint was submitted by an employee at Defendant's Rochester, Minnesota location. (Id., Ex. C.) The employee states only that he was owed money for time worked as detailed on his pay stub. (See id.) The second complaint was submitted by an employee at Defendant's Crystal, Minnesota location who stated that he was forced to work off the clock on one occasion as punishment and was not paid for all hours worked. (See id.) The third complaint was submitted by an employee at Defendant's Burnsville, Minnesota restaurant who stated that she was being forced to work off the clock. (See id.) Plaintiffs also filed a Notice of Filing Consent to Join Forms showing that the named Plaintiffs, along with three other current or former employees of Defendant — Leah Turner, Ryan Cox, and Todd Ayotte — had consented to join the lawsuit. (See Pls.' Notice of Filing Consent to Join Forms Pursuant to the FLSA [Doc. No. 32].)
Plaintiffs argue that, through this evidence, they met their "minimal burden" of establishing a "colorable basis" for their claim that the putative collective action members were the victims of a single decision, policy, or plan. (See Pls.' Mem. at 2, 8.) They contend that Defendant's employees are "routinely" required to work off the clock, without pay, pursuant to a timekeeping system that clocks them out each evening even if they are still working and under other circumstances, such as during training. (Id. at 14-15.) They also argue that, to be considered "similarly situated," they need not be identical and, here, "[o]nly minor, inconsequential differences are likely to exist among the members of the proposed Class." (Id. at 15.) Thus, Plaintiffs contend that variations in job duties or in the amount of damages are not relevant. (See id. at 13.)
Finally, Plaintiffs argue that judicial notice is appropriate and request that Defendant be ordered to provide Plaintiffs' counsel with a list of all putative collective action members, including each member's name, residence address, telephone numbers, email address, job title and dates of employment with Defendant, location of employment with Defendant, employee number, date of birth, and social security number. (Id. at 16-17.) Plaintiffs ask the Court to order notice to be delivered via email and first-class mail, as well as posted on a website and at each of Defendant's restaurants. (Id. at 18-19.)
In response, Defendant argues that the four named Plaintiffs have failed to establish the existence of an unlawful policy, plan, or decision applicable to the entire collective, or that they are similarly situated to a nationwide collective of over 100,000 employees. (Def.'s Opp. to Pls.' Mot. for Conditional Collective Action Certification [Doc. No. 49] ("Def.'s Opp."), at 1, 19.)
In conjunction with its opposition memorandum, Defendant submitted the declaration of David Gottlieb, Defendant's Director of Compliance and Projects [Doc. No. 50]; the declaration of Joel Chrisman, Defendant's Executive Director of IT and Training [Doc. No. 51]; as well as seven declarations of current and former hourly-paid employees (both crew members and managers) of Defendant [Doc. Nos. 52-1, 52-2, 52-3, 52-4, 52-5, 52-6, 52-7]. These employees — at least six of whom work, or worked, at Defendant's Crystal, Minnesota location
In their reply brief, Plaintiffs reiterate their argument that the standard for conditional certification is lenient and that the Court is not to make any credibility determinations or to weigh the merits of their claims. (See Reply Mem. in Supp. of Pls.' Mot. for Conditional Collective Certification and for Judicial Notice to Class [Doc. No. 62] ("Pls.' Reply"), at 6-7.) Plaintiffs claim that, at this stage, Defendant's written policy is irrelevant because there is contrary evidence of an unwritten, unlawful policy of requiring off-the-clock work. (See id. at 8-11.) Moreover, Plaintiffs argue, conditional certification of a nationwide collective action is appropriate "based on relatively little evidence" and is not "inherently unmanageable." (Id. at 11, 13.) Plaintiffs claim that they are similarly situated because they are non-exempt, hourly-paid employees, and the fact that some are hourly-paid managers versus crew members should not be considered until the second certification stage. (See id. at 16-17.) Finally, Plaintiffs argue that their proposed notice plan should be approved because they need the requested information to locate the potential collective action members, there is nothing improper about providing notice to all employees who "may" have a claim, and notice should be provided to all persons who were employed by Defendant within three years of the date the Complaint was filed.
Plaintiffs rely on their previously-submitted evidence, as well as supplemental declarations of two of the named Plaintiffs stating that they work, or worked, the night shift at Defendant's Crystal, Minnesota location; were required to work past Aloha's 12:30 a.m. re-set without pay; witnessed other current or former employees at the Crystal location being subjected to the same treatment; and believed, based on conversations with other individuals, that employees at other locations were treated similarly. (See Supplemental Caldwell Decl. ¶¶ 2, 7, 10-11, 13-14; Supplemental Harris Decl. ¶¶ 2, 5, 8, 17-18.) Plaintiffs also submitted the declarations of two more former hourly-paid employees of Defendant (Leah Turner and Ryan Cox), one of whom was employed at multiple locations in Colorado, and the other at the Crystal, Minnesota location. (See Turner Decl. [Doc. No. 65] ¶¶ 2-5; Cox Decl. [Doc. No. 66] ¶¶ 2-3.) Like the named Plaintiffs, these individuals state that they were required to work off the clock, without pay, after the 12:30 a.m. re-set; that they were told they would be disciplined if they asked to be paid for that time; that they witnessed other employees being treated the same way; and that, based on conversations they had with other individuals, they believed that employees at other locations were treated the same. (See Turner Decl. ¶¶ 6-10, 14; Cox Decl. ¶¶ 4-6, 8, 10-11.) Ms. Turner, who worked as a general manager for a period of time, also stated that she was told by upper management that, due to budget restraints, employees working past 12:30 a.m. should not be clocked back in, and that several general managers in Colorado discussed the fact that they were forced to make people work off the clock and without pay. (Turner Decl. ¶¶ 15-16.)
Plaintiffs also point to several court filings in other cases: three other FLSA lawsuits against Defendant (not all of which contain allegations that specifically state that employees were required to work off the clock), a declaration submitted by Defendant's Director of Security, Safety, and Risk in support of Defendant's notice of removal in another case, approved notice in a case in which it was alleged that "apprentices" were not paid appropriate overtime amounts, and an order denying the defendant's motion for an interlocutory appeal of a district court order granting conditional certification in another case. (See Williams Decl. [Doc. No. 67], Exs. A-C, E-G.) Finally, Plaintiffs also submitted copies of Internet postings and an article about the Aloha system. (See id., Exs. D & H.) The Internet postings contain statements from anonymous former employees in Victorville, California and Peoria, Arizona who state that one should "[e]xpect to work off the clock when closing Grill, or Prep" and "been told to work off the clock several times," respectively. (Id., Ex. D at 1-2.) A third posting from someone who is identified neither as an employee or former employee states: "Are the powers that be at Chipotle aware that employees have to work past 12:30am but for some reason the time clock automatically punches them out at 12:30am?... It happens routinely in a Chipotle in Chicago." (Id., Ex. D, at 3.)
After Plaintiffs submitted these additional exhibits with their reply brief, Defendant requested permission to file a sur-reply, arguing that Plaintiffs' additional evidence was available at the time they filed their moving papers and that Defendant was prejudiced by not being able to address the new evidence and arguments in its opposition brief. (See Def.'s Letter
At the hearing on January 24, Defendant referred to the depositions taken by Plaintiffs of several of Defendant's employees, as well as multiple "demonstrative" exhibits. (See Tr. of Jan. 24, 2014 Motions Hr'g [Doc. No. 85], at 22-23, 29-35, 41, 45.) In addition, the Magistrate Judge requested supplemental briefing on Plaintiffs' counsel's potential conflicts of interest. (See id. at 50.) The parties each submitted letter briefs to the Court. Plaintiffs argued that Defendant lacks standing to seek disqualification of Plaintiffs' counsel because it is not a former or current client of Plaintiffs' counsel, and that disqualification is not warranted because there is only speculation of a conflict and no actual ethical breach. (See Pls.' Letter dated Jan. 31, 2014 [Doc. No. 80].) Defendant, on the other hand, argues that Plaintiffs' counsel has a conflict of interest because they represent Leah Turner in multiple lawsuits and seek to resolve the same claims in multiple proceedings. (See Def.'s Letter dated Jan. 31, 2014 [Doc. No. 81].) Along with its letter, Defendant submitted eleven exhibits, including two deposition transcripts (Exs. 1 & 2), a declaration of Defendant's Business Intelligence Manager stating that there were between 66,000 and 100,000 instances during the proposed class period in which Defendant's records reflected time worked after 12:30 a.m. by hourly-paid employees (Ex. 3), and several documents relating to other matters involving Ms. Turner (Exs. 4-11).
The Magistrate Judge issued his R & R on April 10, 2014, 2014 WL 4449670. He first reviewed the various pieces of evidence submitted by the parties and determined that the evidence submitted by Plaintiffs in support of their motion, and by Defendant in response to the motion, are appropriately considered at the conditional certification stage. (Report and Recommendation dated Apr. 10, 2014 [Doc. No. 87] ("R & R"), at 9.) As for the remaining evidence, the Magistrate Judge determined that he would consider the documents filed with Plaintiffs' reply brief. (Id. at 10.) He also stated that he would consider the following documents submitted by Defendant either prior to, or at, the conditional certification motion hearing because they were publically-filed documents: the opinion in Lou v. Ma Labs., Inc., No. C 12-05409 WHA, 2014 WL 68605 (N.D.Cal. Jan. 8, 2014), regarding disqualification of counsel; and a complaint filed by Ms. Turner in another matter. (See id. at 10-11.) However, he decided not to consider any of the other documents presented at the hearing because they were not submitted to, or accepted by, the Court as evidence. (See id. at 11.) He also declined to consider the documents included with Defendant's letter briefing regarding the disqualification of counsel because the Court had not contemplated the submission of exhibits. (See id. at 11-12.)
In regard to the merits of Plaintiffs' motion, the Magistrate Judge concluded that Plaintiffs had demonstrated a colorable basis that they are similarly situated and were the victims of a single decision, policy, or plan, albeit a narrower common policy (relating only to those hourly-paid employees who worked the closing shift) than that proposed by Plaintiffs. (Id. at
As for a common policy, the Magistrate Judge concluded that "the pressure that all Chipotle restaurants must stay within the budget goals, set on a corporate level, created a corporate policy to require employees to work off the clock during closing shifts to meet those goals." (Id. at 18.) Because he found Plaintiffs' evidence to be focused on off-the-clock work during closing shifts, however, he narrowed the broad class definition proposed by Plaintiffs, which had included not only hourly employees who worked off the clock after being punched out by Aloha, but also those who "otherwise worked `off the clock.'" (Id. at 19.) The Magistrate Judge, therefore, recommended conditional certification of the following collective action:
(Id. at 33-34.)
In so holding, the Magistrate Judge relied on the declarations submitted by the named Plaintiffs, Ms. Turner, and Mr. Cox, as well as the declaration of Defendant's Director of Security, Safety, and Risk. (See id. at 17-18.) While he found this evidence to be sufficient to support Plaintiffs' motion, the Magistrate Judge went on to consider whether Plaintiffs' unsworn evidence was relevant to the more narrow definition. (Id.) He concluded that the DOLI complaints were not probative because they were not based on personal knowledge and did not refer to the closing shift, that the court complaints and documents regarding notice in cases pending in other districts were not relevant because they are not specific to off-the-clock work during closing shifts, and that the Internet posting from Peoria, Arizona was not relevant because it did not refer to off-the-clock work during closing shifts. (See id. at 21-23.) However, the Magistrate Judge did find that the other two Internet postings (from Victorville, California and Chicago, Illinois) — despite being difficult to authenticate — would be considered because they refer to off-the-clock work during the closing shift. (See id. at 23-24.)
After determining that Plaintiffs had established a colorable basis for their collective action, the Magistrate Judge considered Defendant's argument that Plaintiffs' counsel must be disqualified based on their representation of Ms. Turner in other lawsuits. (See id. at 24-25.) The Magistrate Judge found that Lou was not applicable because it primarily addressed adequacy of counsel in the context of class certification under Rule 23 of the Federal Rules of Civil Procedure and that, at any rate, the issue would be more appropriately addressed at the decertification stage. (See id. at 24-26.) Even so, the Magistrate Judge determined that any potential conflicts have been resolved because Ms. Turner's FLSA case in Colorado was dismissed, and the other two cases (regarding misclassification and workers' compensation)
Finally, the Magistrate Judge determined that judicial notice is appropriate in this case. (Id. at 28.) He found that Defendant should be ordered to produce the names, email addresses, and last known addresses of potential plaintiffs, and that the requested four forms of notice were not unreasonably burdensome. (See id. at 28-30.) In addition, the Magistrate Judge found that the notice should cover a time period dating back to October 23, 2010, which is three years before Plaintiffs filed their notice of consent, and that notice should be provided to all current and former hourly employees of Defendant. (Id. at 32-33.) He also recommended that the parties engage in a meet-and-confer process to resolve any remaining issues with the contents of the notice. (See id. at 31-33.)
The parties dispute whether this Court should review the R & R de novo or for clear error.
Defendant filed its objections to the R & R on May 12, 2014, and Plaintiffs responded on May 27. Defendant asserts that the Magistrate Judge erred in his recommendation of conditional certification of a nationwide collective action. (See Def.'s Objs. to the Apr. 10, 2014 R & R on Pls.' Mot. for Conditional Collective Action Certification [Doc. No. 93] ("Objs."), at 1.)
Defendant first objects to the Magistrate Judge's refusal to consider all of the evidence with which he was presented. (See Objs. at 4.) Defendant argues that whether Plaintiffs have demonstrated a "colorable claim" should not be judged solely on the evidence presented by Plaintiffs, but that Defendant's evidence should also be considered. (See id.) According to Defendant, the Magistrate Judge should have considered the deposition testimony of the other Crystal, Minnesota restaurant employees that Defendant presented during oral argument and later filed. (See id. at 5-6.) In addition, Defendant argues that the Magistrate Judge should have considered the exhibits attached to its letter briefing on the conflict-of-interest issue. (See id. at 7-8.)
As will be discussed in further detail below, this Court respectfully disagrees with the Magistrate Judge's finding that conditional certification of a nationwide class is appropriate in this case based on the evidence that the Magistrate Judge did consider. Rather, this Court finds that Plaintiffs' evidence presents a colorable claim that they were the victims of a common, unlawful policy only at the Crystal, Minnesota restaurant. Although some of Defendant's additional evidence pertains to practices at that restaurant (e.g., the deposition testimony) and to instances in which Defendant's employees did record time worked after 12:30 a.m., the Court may not engage in credibility determinations or otherwise weigh the evidence at this stage. See Brennan v. Qwest Commc'ns Int'l, Inc., Civ. No. 07-2024 (ADM/JSM), 2008 WL 819773, at *3 (D.Minn. Mar. 25, 2008) (citation omitted) ("In determining whether Plaintiffs have come forward with evidence establishing a colorable basis for their claim ..., the Court `does not make any credibility determinations or findings of fact with respect to contrary evidence presented by the parties at this initial stage.'"). Accordingly, this objection is overruled.
Defendant next objects to the Magistrate Judge's recommendation of conditional certification for a nationwide collective action consisting of all hourly workers. (See Objs. at 9-14.) The FLSA authorizes employees to bring a collective action against employers to recover unpaid overtime. 29 U.S.C. § 216(b). Unlike a Rule 23 class action, no employee is a party to an FLSA collective 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.'" Smith v. Heartland Auto. Servs., Inc., 404 F.Supp.2d 1144, 1149 (D.Minn.2005) (citation omitted). "Courts have discretion, in `appropriate cases,' to facilitate the opt-in process by conditionally certifying a class and authorizing courtsupervised notice to potential opt-in plaintiffs." Saleen v. Waste Mgmt., Inc., 649 F.Supp.2d 937, 939 (D.Minn.2009) (quoting Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989)).
After discovery is completed, the court conducts an inquiry into several factors if there is a motion to decertify. Burch, 500 F.Supp.2d at 1186. These factors include: "[1] the extent and consequences of disparate factual and employment settings of the individual plaintiffs, [2] the various defenses available to the defendant that appear to be individual to each plaintiff, and [3] other fairness and procedural considerations." Id. (citation and internal quotation marks omitted). "If a class is decertified, opt-in class members are dismissed without prejudice, and the case proceeds only in the putative class representatives' individual capacities." Keef v. M.A. Mortenson Co., No. 07-CV-3915 (JMR/FLN), 2008 WL 3166302, at *2 (D.Minn. Aug. 4, 2008).
Since the parties here have not completed discovery, this case is at the first step of the two-step inquiry.
Defendant argues, first, that Plaintiffs have not demonstrated a colorable basis that Defendant has a nationwide policy to force off-the-clock work and, second, that its hourly-paid managers are not similarly situated to its hourly-paid crew members. (See Objs. at 9-14.) While this Court agrees that a nationwide class of Defendant's employees is inappropriate, it finds that — for purposes of conditional certification — Plaintiffs have demonstrated a colorable claim of a common, unlawful policy in regard to Defendant's Crystal, Minnesota restaurant, and that Defendant's hourly-paid employees are similarly situated regardless of their job title.
As discussed above, the Magistrate Judge determined that Plaintiffs' evidence demonstrated a colorable basis for their claim that Defendant has a nationwide corporate policy of requiring its hourly-paid employees to work off the clock during
The Court will first address the standard advocated by Defendant. In its objections, Defendant cites to Lyons v. Ameriprise Financial, Inc., Civ. No. 10-503 (RHK/JJK), 2010 WL 3733565 (D.Minn. Sept. 20, 2010), for the proposition that Plaintiffs must support their claim with "substantial evidence." (Objs. at 9.) The court in Lyons, however, did not use the term "substantial evidence," nor in its application of the conditional certification standard did the court require "substantial evidence." Rather, the court repeatedly emphasized the lenient standard for conditional certification:
Lyons, 2010 WL 3733565, at *2-3 (internal citations, quotation marks, and brackets omitted). Although the court noted that the plaintiff had submitted declarations, deposition excerpts, and interrogatory responses in support of her motion, the court determined that the testimony (through declarations and deposition excerpts) of the named plaintiff and seven opt-in plaintiffs that they were required to do work for which they were not paid was "sufficient to establish a colorable basis for [the plaintiff's] claims." Id. at *3.
Defendant also relies on the U.S. Supreme Court's decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), for the proposition that "if Plaintiffs' evidence is merely consistent with liability, rather than plausibly demonstrating liability, the evidence cannot be `colorable.'" (Objs. at 9.) However, as Defendant acknowledges, those opinions clarified the standard to be applied in determining whether a complaint can survive a motion to dismiss, not whether a plaintiff can prevail on a motion for conditional certification of a collective action. (See id.) Accordingly, those cases are inapposite, and Defendant's argument for a heightened standard fails.
That being said, the Court finds that Plaintiffs' evidence is insufficient to establish a colorable basis for a nationwide collective action even under the lenient conditional certification standard. The R & R bases the finding of a corporate-wide policy to underpay employees on evidence purportedly showing that labor budgets are set at the corporate level and that pressure to stay within budget was a corporate policy. (R & R, at 17.) However, as Defendant points out, five of the six declarations upon which the Magistrate
In light of the colorable evidence of this common, unlawful policy, the Court finds that Plaintiffs are similarly situated. The term "similarly situated" is not defined by the FLSA, but it "typically requires a showing that an employer's commonly applied decision, policy, or plan similarly affects the potential class members, and inflicts a common injury on plaintiffs and the putative class." Keef, 2008 WL 3166302, at *2 (citation omitted). "This decision lies within the Court's sound discretion." Id. (citation omitted).
As discussed above, Plaintiffs have presented evidence of a common policy to require hourly-paid employees to work off the clock, and without pay, during closing shifts. And, as noted in the R & R, Plaintiffs are all current or former hourly-paid employees of Defendant who worked the closing shift and claim to have been the victims of that policy. Despite these commonalities among Plaintiffs, Defendant argues that the hourly-paid managers and crew members are not similarly situated because the managers could be held accountable for failing to ensure the accuracy of time records and so will deny forcing the crew members to work off the clock. (See Def.'s Objs. at 13-14.) According to Defendant, these circumstances create an "irreconcilable conflict," and — contrary to the Magistrate Judge's determination — the Court need not wait until the decertification stage to resolve this issue because there is no conflicting evidence. (See id.) In response, Plaintiffs argue that the hourly-paid managers cannot be held liable under the FLSA because they have no economic or operational control over the employment relationship and that, to the extent they directed crew members to work off the clock, they did so in compliance with Defendant's unlawful policy. (See Pls.' Resp. at 10-11.) Therefore, Plaintiffs assert, the hourly-paid managers are similarly situated to the crew members because they were subjected to the same unlawful policy. (See id. at 11-12.) They also argue that the issue is more appropriately resolved at the decertification stage because there are disputed issues of fact. (See id. at 12.)
This Court agrees with the Magistrate Judge and Plaintiffs that the evidence presented by Plaintiffs is sufficient for conditional certification of a collective action that includes both hourly-paid managers and crew members. "[N]umerous courts
Defendant next argues that Plaintiffs' counsel is conflicted and should be disqualified. (See Objs. at 14-15.) The sole argument in Defendant's objections appears to be that, because Plaintiffs' counsel represents Ms. Turner in this lawsuit and in a previously-filed workers' compensation lawsuit, they may use the wage claims to leverage settlement of the workers' compensation claims. (See id.) However, this Court has determined that the appropriate scope of this collective action extends only to employees of Defendant's Crystal, Minnesota restaurant. Because Ms. Turner was not employed at that location, she will not qualify as a member of the collective action in this case, and the alleged conflict of which Defendants complain will disappear. Accordingly, Defendant's objection is overruled as moot.
Finally, Defendant asserts that the Magistrate Judge erred in recommending that notice be provided to individuals employed by Defendant since October 23, 2010, which — at the time the R & R was issued — was a date three-and-a-half years in the past. (Objs. at 15-16.) Defendant argues that a class member can assert a FLSA claim dating back to, at most, three years prior to the date the member opts into the class, and that any older claims are time-barred. (See id.) Accordingly, Defendant contends that notice should be sent only to employees who worked for Defendant within three years of the date of the Court's order approving notice. (See id. at 16.) Plaintiffs, on the other hand, argue that beginning the notice period three years prior to the filing of their motion for conditional certification is appropriate because members whose claims are time-barred may seek equitable tolling. (Pls.' Resp. at 13.) In fact, Plaintiffs assert, the time it takes to adjudicate a
This Court finds that the language of the FLSA supports Defendant's position. Under the FLSA, a claim must be brought "within two years after the cause of action accrued," or within three years if the violation was willful. 29 U.S.C. § 255(a). In the case of a collective action, a lawsuit is "commenced" by an "individual claimant":
Id. § 256. As noted by another court within this District, "[n]otice should be consistent with this determination." In re RBC Dain Rauscher Overtime Litig., 703 F.Supp.2d 910, 966 (D.Minn.2010). Several courts around the country have interpreted this language to require the provision of notice only to individuals who were employed by the defendant within three years of the provision of notice or of the court order approving such notice. See, e.g., Whitehorn v. Wolfgang's Steakhouse, Inc., 767 F.Supp.2d 445, 451 (S.D.N.Y. 2011) ("Because the statute of limitations runs for each individual plaintiff until he consents to join the action, courts generally permit plaintiffs to send notice to those employed during the three year period prior to the date of the Order or to the mailing of the notice."); Tolentino v. C & J Spec-Rent Servs. Inc., 716 F.Supp.2d 642, 654 (S.D.Tex.2010) ("[C]lass certification is appropriately limited to workers employed by Defendant up to three years before this Court approves the notice.... Thus, the notice period must commence three years prior to the Court's approval of th[e] notice."); Camp v. Progressive Corp., No. Civ.A. 01-2680, 2002 WL 31496661, at *6 (E.D.La. Nov. 8, 2002) ("[T]he court will allow notice to be given to potential plaintiffs for claims of willful violations extending back three years from the date of entry of this order."). Likewise, courts within this District have used a class period extending back three years from the date notice was issued, albeit without discussion or any apparent objection by the defendant. See, e.g., Loomis v. CUSA LLC, 257 F.R.D. 674, 678 (D.Minn.2009).
Although Plaintiffs, in their response to Defendant's objections, ask that the notice be provided to individuals employed within three years of the date that they filed their motion for conditional certification based on the possibility of equitable tolling, the only basis for tolling that they have articulated is the amount of time it takes to adjudicate a motion for conditional certification. As noted by the Eighth Circuit, there may be instances when equitable tolling is appropriate even though the defendant was not the cause of the time bar. Redman v. U.S. W. Bus. Res., Inc., 153 F.3d 691, 695 n. 5 (8th Cir.1998). The Court finds that the amount of time that passed between the filing of the motion for conditional certification and the issuance of the R & R does not warrant equitable tolling. However, because this Court referred Plaintiffs' motion for conditional certification to the Magistrate Judge, and because this Court's Order is permitting conditional certification of a subset of the collective action recommended by the Magistrate Judge, the Court finds that equitable tolling of the statute of limitations from the date of the Magistrate Judge's Order to the date of this Order is appropriate. Accordingly, the collective action in this case
