JAMES KNOLL GARDNER, District Judge.
This matter is before the court on Defendant Reading Hospital's Motion to Decertify the Conditionally Certified Collective Action filed April 25, 2016 ("Motion to Decertify").
For the reasons that follow, I grant defendant's Motion to Decertify and decertify this conditionally-certified collective action class. Accordingly, this case will proceed with only the named plaintiff Susan Bell.
On October 9, 2013, plaintiffs initiated this action by filing a Collective Action Complaint ("Complaint").
By Stipulation and Order to Conditionally Certify Collective Action Class signed by me on June 27, 2014 and filed June 30, 2014 ("Collective Action Stipulation"),
The parties further stipulated that the following employees would be exempt from the class: "[s]alaried employees, such as administrative, managerial and professional employees, who are exempt from the provisions of the Fair Labor Standards Act, 29 U.S.C. §§ 201-219".
On September 9, 2014, plaintiffs filed a Notice of Filing Opt-In Consent Forms Pursuant to 29 U.S.C. § 216(b),
By Joint Stipulation of Dismissal Pursuant to Rule 41(a)(1)(A)(ii) signed by me on September 23, 2015 and filed on September 24, 2015,
By Order dated December 2, 2015 and filed December 4, 2015,
On April 25, 2016, defendant filed its Motion to Decertify together with Defendant Reading Hospital's Brief in Support of its Motion to Decertify the Conditionally Certified Collective Action
On May 20, 2016, plaintiffs filed Plaintiffs' Response to Defendant's Statement of Facts and Plaintiffs' Affirmative Statement of Facts together in one document ("Plaintiffs' Statement of Facts").
On May 26, 2016, defendant filed Defendant's Response to Plaintiffs' Affirmative Statement of Facts.
On June 16, 2016, a hearing was conducted on the Motion to Decertify. At the hearing, plaintiffs presented no witnesses and defendant presented six witnesses: Tracy Adami, Maryellen Alderfer, Julie Schlappich, Christi Pelko, Karen Niewood, and Lisa Naugle. By stipulation of the parties, the court entered into evidence all of the documents listed in the Updated Joint Appendix,
The court has subject matter jurisdiction over this matter pursuant to 29 U.S.C. § 216(b) of the Fair Labor Standards Act ("FLSA") which authorizes suit in "any Federal or State court of competent jurisdiction" and pursuant to 28 U.S.C. § 1331 based upon a federal question.
Venue is proper because the events giving rise to this cause of action occurred in Reading, Berks County, Pennsylvania, which is within this judicial district.
Based upon the pleadings, exhibits, deposition testimony, proposed findings of fact and stipulations of the parties, testimony of the witnesses, and credibility determinations made by me pursuant to Federal Rules of Civil Procedure 52(a) and (c), I make the following findings of fact.
1. Defendant Reading Hospital and Medical Center ("Reading") is a non-profit, comprehensive medical center with multiple facilities located primarily in West Reading, Pennsylvania.
2. Plaintiffs were each employed by Reading as a Registered Nurse ("RN") or surgical technician at some point between July 1, 2011 and the present.
3. Reading is divided into various departments, which vary in location, size, hours of operation, and staffing.
4. Reading's various departments use different systems for meal break coverage.
5. From July 1, 2011 to the present, the opt-in plaintiffs in this case have worked in 14 different departments for 32 different supervisors during the time they fell within the confines of the conditional class.
6. The lengths and hours of the plaintiffs' shifts varied.
7. The job duties of each plaintiff also varied.
8. In 2009, Reading began using an electronic timekeeping system called Kronos.
9. Reading's formal policies require all employees who are not exempt from the FLSA's overtime provisions to swipe their timecards using Kronos at the beginning and end of each shift.
10. Employees who work at least five-and-a-half hours are eligible to take a 30-minute uninterrupted meal break.
11. Employees are not always able to take a 30-minute uninterrupted meal break, however, for reasons that differ among departments, job duties, and shifts, including staffing and patient acuity.
12. Between 2009 and November 3, 2014, the Kronos system would automatically deduct a 30-minute unpaid meal break from the pay of employees who worked for more than five-and-a-half hours.
13. It was possible, however, for supervisors
14. Between 2009 and November 2014, Reading had no institutional policy for cancelling meal breaks; each department was permitted to devise its own methods.
15. Reading provides training to supervisors on Kronos, including how to cancel automatic meal break deductions.
16. Approximately every other month, Reading's payroll department conducts "user group meetings", to which all "Kronos super users" (individuals deemed experts at using the Kronos system) are invited.
17. At the user group meetings, payroll department personnel provide training on Reading's formal policies and the Kronos system, including Reading's policy to compensate employees who experience missed or interrupted meal breaks.
18. Meeting minutes are distributed to all "Kronos users" after user group meetings. Kronos users are nurse managers, division directors, timekeepers, and anyone else with a timekeeper or manager license.
19. Reading's Recording of Time Policy dated August 1, 2010 states that it is Reading's policy "to establish and maintain `hours of work' which are compatible with Federal and State law".
20. Reading's Recording of Time Policy dated August 1, 2010 and revised July 1, 2012 and May 10, 2013 prohibits and prescribes discipline if an employee "Fails to Record Time" using Kronos.
21. Reading's Recording of Time and Hours of Work policies are distributed to employees.
22. Reading provides new hires with general orientation, including timekeeping policies.
23. Employees are also oriented at the departmental level, including hours of work and meal break policies and the procedure to follow to have the automatic meal break deduction cancelled.
24. Employees receive varying types and degrees of training on the procedures for having an automatic meal break deduction cancelled depending on their supervisor and the department in which they work.
25. Departmental training regarding meal breaks and methods of having meal break deductions cancelled occurs in many different settings, including departmental orientation, staff meetings, meeting with a preceptor or educator, "huddles", informal interpersonal or group conversations, e-mails, and by word-of-mouth from employee to employee.
26. The information conveyed varies by department, but employees are generally aware that they are entitled to be compensated for both missed and interrupted meal breaks.
27. However, plaintiffs claim they were not aware that they could be compensated for interrupted, rather than fully missed, meal breaks, particularly prior to November 2014.
28. The methods adopted for reporting missed or interrupted meal breaks differed by department and supervisor, and included in-person notification, e-mail, written notice, notations made in a specified log, and written notification on a white board.
29. On November 3, 2014, Reading adopted an update to Kronos referred to as the attestation system, whereby upon clocking out, an employee is prompted to indicate whether or not the employee received a full 30-minute uninterrupted meal break, which includes both missed and interrupted breaks.
30. If an employee indicates through the attestation system that he or she did not receive a full meal break, an e-mail is sent to the employee's supervisor, and the meal deduction is cancelled.
31. Some departments still maintain a system of reporting missed or interrupted meal breaks in some fashion in addition to the attestation system.
32. Reading provided institutional training to employees regarding the attestation system
33. Between June 26, 2011 and September 8, 2015, the opt-in plaintiffs had a total of 1,318 cancelled automatic meal break deductions.
34. Each of the 22 opt-in plaintiffs requested meal deduction cancellations, ranging from a minimum of 8 times and a maximum of 252 times.
35. Some of the meal break cancellations were made for interrupted, rather than fully missed, meal breaks.
36. Nonetheless, some plaintiffs claim that they were not compensated for all missed or interrupted meal breaks because they failed to report all of them.
37. Reading did not have a formal policy or systematic practice of instructing supervisors to discourage employees from seeking pay for missed or interrupted meal breaks.
38. Reading also did not have any formal policy or systematic practice requiring supervisors to discipline employees seeking pay for missed or interrupted meal breaks.
39. Nonetheless, plaintiffs claim that they felt discouraged by specific supervisors from requesting pay for missed or interrupted meal breaks or worried they would be disciplined for doing so.
40. However, none of the opt-in plaintiffs were actually disciplined for requesting pay for a missed or interrupted meal break.
41. Sometimes, supervisors would question employees about their missed or interrupted meal break, generally only to ensure that the employee had the resources he or she needed.
42. Nonetheless, some employees felt that their supervisors were questioning their time management.
Collective action cases under the FLSA follow a "two-tier approach".
Second, after evidence is obtained through discovery, the court rules upon final certification by employing a more stringent standard to determine whether the class members are "similarly situated".
Final certification of a collective action class under the FLSA can result from granting a motion for final certification, denying a motion for decertification, or both.
Regardless of the party who raises the final certification issue, plaintiffs bear the burden to show by a preponderance of the evidence their entitlement to final certification.
In determining final certification, the court must engage in "a specific factual analysis of each employee's claim to ensure that each proposed plaintiff is an appropriate member of the collective action."
At the outset, the opt-in plaintiffs "should have been impacted by a common employer practice that, if proved, would help demonstrate a violation of the FLSA."
Next, to determine whether the plaintiffs are similarly situated, the relevant factors to consider fall into three main categories: "(1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendant that appear to be individual to each plaintiff; and (3) fairness and procedural considerations."
In considering these elements, specific factors to consider include:
Plaintiff Susan Bell brings this putative collective action under the Fair Labor Standards Act, which requires employers to compensate non-exempt employees at a minimum wage for all hours worked, and for overtime "at a rate not less than one and one-half times [his or her] regular rate" for hours worked in excess of forty hours per week. 29 U.S.C. §§ 201, 206, 207;
At all relevant times, defendant Reading utilized an electronic timekeeping system called Kronos for hourly employees. Between 2009 and November 2014, Kronos would automatically deduct 30 minutes of pay based on the eligibility for a 30-minute meal break for employees who worked more than five and a half hours. In November 2014, defendant Reading adopted an update to Kronos referred to as the "attestation" feature. The attestation feature requires employees to attest to whether or not they had received a 30-minute uninterrupted break when they clock out at the end of their shift.
Plaintiffs allege that prior to November 2014, they were not instructed or trained that they could request compensation for meal breaks that were interrupted as opposed to fully missed. They further allege that they were discouraged from requesting compensation for missed or interrupted meal breaks, particularly after November 2014.
Defendant contends that plaintiffs have failed to establish that the members of the putative class are similarly-situated. As a preliminary matter, defendant argues that plaintiffs have identified no common policy or policy-to-violate-the-policy.
Defendant also contends that the circumstances of plaintiffs' employment were different. Among the distinctions emphasized by defendant are the variety of departments, supervisors, job duties, and schedules of each plaintiff. Defendant also highlights the differences between plaintiffs with respect to meal breaks, including the availability of meal break coverage, the frequency with which meal breaks were missed or interrupted, the methods for reporting missed or interrupted meal breaks, and the variety of departmental training on meal breaks.
Next, defendant argues that it has numerous individual defenses with respect to each plaintiff. It contends that these defenses arise from the variety of differences between each plaintiff. Finally, defendant argues that class litigation would not be fair because of the numerous individualized defenses that it would need to litigate.
For the following reasons, I find that the factors in this case warrant decertification of the conditionally-certified class.
Plaintiffs concede that the automatic meal break deduction policy does not itself violate the FLSA.
In cases such as this where defendant's formal policies comply with the FLSA, plaintiffs must demonstrate a "policy-to-violate-the-policy".
Plaintiffs contend that, prior to November 2014, there existed a policy-to-violate-the-policy of failing to train employees regarding the entitlement to pay for interrupted meal breaks. The relevant training was implemented on a department-by-department, and sometimes supervisor-by-supervisor, basis.
Plaintiffs also argue that, primarily after November 2014, there was a policy of discouraging employees from requesting pay for missed or interrupted meal breaks. Each plaintiff's feeling of discouragement was based on individual interactions with specific supervisors, who claim that they were never instructed to discourage employees from requesting meal break pay.
Plaintiffs' alleged unifying policies rely upon facts and circumstances which differ for each of the opt-in plaintiffs—the training, knowledge, and sentiments of each class member and various supervisors. As discussed below, these factors generate individualized inquiries and defenses.
The circumstances of each plaintiff's employment differed.
Each plaintiff's experience with respect to missed or interrupted meal breaks also differed.
Plaintiffs provide a litany of similarities between them, including that they were subject to the same general human resources policies, used the same timekeeping system, were subject to an automatic 30-minute lunch break deduction, used the same payroll system, served in one of two different positions, and worked full-time or full-time equivalent hours. However, these similarities are largely immaterial. As discussed more fully below, their claims require analysis of the facts that differ greatly between the plaintiffs.
Plaintiffs' claims create individualized inquiries and defenses. "Individualized defenses prevent efficient representative proceedings and courts have not hesitated to grant decertification on that basis."
Individual inquiries are necessary to address plaintiff's lack-of-training argument. The dates on which training was provided regarding meal breaks, the frequency with which such training occurred, and the settings in which training was provided all differed among plaintiffs, supervisors, and departments. Individual inquiries are required to determine the number of times each plaintiff requested a cancellation of the deduction and whether any of these requests were made for interrupted meal breaks. Additionally, the court will need to assess each plaintiff's knowledge of the ability and methods to request pay for missed or interrupted meal breaks whether, for example, the knowledge was imparted through training, word of mouth between employees, or by other means.
Plaintiffs argue that no individualized defenses are necessary with respect to its lack-of-training policy argument. They contend that "they were never trained or informed that they could use the Kronos log to claim pay for an interrupted meal break before November 2014, did not claim pay for their interrupted meal breaks during this period, and were not paid for their interrupted meal breaks during this period."
The crux of plaintiffs' claim relates to training, or lack thereof. Because training regarding meal breaks was decentralized and delegated to each department or supervisor, this claim inherently creates individualized defenses with respect to each opt-in plaintiff.
Regarding plaintiffs' policy-of-discouragement argument, individual inquiries are also necessary. The court will need to consider factors including what statements or questions were made by supervisors to each plaintiff regarding requests for meal break pay; why each plaintiff felt discouraged from requesting pay; whether each plaintiff's feeling of discouragement was objectively reasonable; whether defendant trained or instructed supervisors to discourage or question requests for meal break pay; how many times, if any, plaintiffs requested meal break pay despite allegedly feeling discouraged; and whether any employee, particularly any plaintiff, was disciplined or otherwise penalized for requesting pay.
Each plaintiffs' alleged feeling of discouragement was an individual reaction resulting from interactions with specific supervisors. Therefore, this inquiry is also individualized. Plaintiffs focus on the uniform Kronos feature of e-mailing supervisors to notify them when employees attested that they experienced a missed or interrupted meal break. While this practice was systematic, the way each supervisor dealt with the notifications differed, whether he or she simply deleted the e-mails or asked employees about their missed breaks.
Plaintiffs further allege that defendant had knowledge that plaintiffs worked during their meal breaks without being paid. This allegation also requires an individualized inquiry with respect to each plaintiff. Each plaintiff testified differently regarding the level of contact with his or her supervisor and the supervisor's knowledge regarding meal breaks. Some plaintiffs testified that they rarely worked with their supervisors, others frequently worked with their supervisor. Some plaintiffs worked in large departments, and others worked in smaller, more intimate, departments. Moreover, because each plaintiff requested pay for missed or interrupted meal breaks between 8 and 252 times, individual inquiries are necessary to determine how supervisors could determine that each plaintiff worked during meal breaks without pay despite their requests for such pay on many occasions.
The many factual differences with respect to each plaintiff demonstrate that plaintiffs "were not uniformly affected by [Reading's] department-by-department approach to meal deduction cancellations."
When plaintiffs allege that FLSA violations result "from the enforcement decisions of individual supervisors. . . collective treatment is not appropriate."
Plaintiffs argue that each plaintiff brings similar claims and requests similar relief.
Plaintiffs cite
Fairness in this case cuts both ways, but ultimately favors defendant. Plaintiffs argue that fairness requires final certification because the minimal damages alleged by each plaintiff would deter them from pursuing individual actions.
Fairness considerations weigh in favor of defendant. A collective action would be unmanageable here because of the numerous disparities among the plaintiffs which necessitate individual inquiries and defenses.
To address the issue of manageability, plaintiffs suggest bifurcating the action between liability and damages. They contend that the primary disparities between the plaintiffs relate to damages. I disagree with this assessment and find that numerous differences among the plaintiffs are relevant to liability.
Numerous other district courts have decertified collective actions based on nearly identical facts. Plaintiffs attempt to distinguish this case from other cases challenging the Kronos timekeeping system as it relates to meal breaks.
Plaintiffs' argument lacks merit. Even cases in which plaintiffs challenged the automatic deduction system itself included additional challenges. The courts have gone beyond the legality of the Kronos automatic deduction feature in their certification analyses. The legality of this feature has not been the controlling factor in this line of cases.
In
Additionally, other district courts in this judicial circuit, recognizing that the Kronos automatic deduction feature does not itself violate the FLSA, decertified collective actions which, as here, involved decentralized implementation of meal break policies. In
Similarly, in
For the above reasons, I grant defendant's Motion to Decertify. Plaintiffs have identified no common policy allegedly violative of the FLSA. Furthermore, the circumstances of each plaintiff's employment differed, including their experience with meal breaks.
Additionally, plaintiff's claims produce individualized inquiries and individualized defenses. The experience of each plaintiff with respect to meal break training and sentiments of discouragement from seeking meal break pay was based upon individualized incidents involving interaction with specific supervisors.
Finally, fairness considerations weigh in favor of defendant. Although plaintiffs would be more easily capable of proceeding jointly for financial and administrative purposes, that approach would be inappropriate given the potential for twenty-two mini trials to the detriment of defendant and the court. Accordingly, defendant's Motion to Decertify is granted and the twenty-one opt-in plaintiffs are dismissed from this action.
