JON PHIPPS McCALLA, Chief Judge.
Before the Court is named Plaintiffs Cherie Lindberg and Grady Moody's (collectively
On January 7, 2010, Cherie Lindberg ("Lindberg") filed a complaint on behalf of herself and those similarly situated against Defendant Lakeside. (D.E. 1.) Lindberg later amended her complaint on August 20, 2010, adding Grady Moody as an additional named Plaintiff and adding UHS and CBH as Defendants. (First Am. FLSA Collective Action Compl. ("Am. Compl.") (D.E. 49).) In their Amended Complaint, Plaintiffs allege that Defendants violated the Fair Labor Standards Act ("FLSA") by not compensating Plaintiffs and other members of the purported class for overtime as required by the FLSA. (Id. ¶ 41.)
Lakeside and CBH operate behavioral health facilities in Memphis, Tennessee. (See Decl. of James Miller ("Miller Decl.") (D.E. 51) ¶¶ 2-3; Decl. of Patricia Turner ("Turner Decl.") (D.E. 52) ¶ 1.) Cherie Lindberg was employed full-time by Lakeside as a registered nurse and charge nurse from April 2007 through January 2010. (Am. Compl. ¶ 3.) Grady Moody was employed full-time by CBH as a community counselor from 1999 through April 2008.
Plaintiffs' allege that Defendants violated the FLSA by subjecting all hourly employees to a common policy that deducted a 30-minute meal period for each shift, regardless of whether or not employees had the opportunity to take a break, and made no effort to ensure that the employees were relieved of duty during that time. (Am. Compl. ¶ 15; Pls.' Mem. of Law in Supp. of Mot. ("Pls.' Mem.") (D.E. 31-1) 13.) According to Plaintiffs, Defendants expect hourly employees to be available at all times during their shifts to respond to demands from patients and requests from coworkers and supervisors. (Am. Compl. ¶¶ 22-24.) As a result, employees are consistently required to continue working during unpaid meal breaks "without ... relief by additional staff." (Id. ¶ 19, 23.)
Plaintiffs further allege that Defendants were on notice that employees worked unpaid through meal breaks because management both requested it and observed it. (Id. ¶¶ 25-26.) In addition, Plaintiffs aver that, "[g]iven the demands of the health care industry and staffing shortages," Defendants knew that their employees would have to work through their unpaid breaks in order to complete their assigned tasks. (Id. ¶ 28.)
Plaintiffs argue that Defendants' meal break deduction policy improperly shifts the burden to employees to reverse the automatic deduction, and that this policy, common to all hourly employees, is subject to challenge on a collective basis. (Id. ¶¶ 29, 41.)
Plaintiffs seek conditional certification of a collective action, and propose that notice
Defendants concede that, at all relevant times, Lakeside and CBH had similar meal break deduction policies in place for all non-exempt employees.
Effective March 28, 2010, Lakeside changed its meal break policy. (Id. ¶ 14.) Under the new policy, employees are required to clock in and out when they take their meal breaks. (Id.) Effective April 11, 2010, CBH eliminated its auto-deduction policy. (Turner Decl. ¶ 13.)
In support of their motion for conditional class certification, Plaintiffs filed the interrogatory responses of eight putative plaintiffs and one named Plaintiff.
The reasons given by the declarants for working through some or all of their meal periods vary. For example, six declarants averred that they were told they could not leave their posts unattended and/or leave their patients unsupervised. (Barnes Interrogs. ¶ 17; Cotton Interrogs. ¶¶ 9, 17; Curran Interrogs. ¶ 17; Curry Interrogs. ¶ 3; Lindberg ¶ 17; Wilks Interrogs. ¶ 3.) Seven declarants stated that there was insufficient staff available to relieve them for breaks. (Barnes Interrogs. ¶ 3; Cotton Interrogs. ¶¶ 9, 17; Curran Interrogs. ¶ 17; Curry Interrogs. ¶ 3; Lindberg Interrogs. ¶ 17; Thibodeau Interrogs. ¶ 7; Wilks Interrogs. ¶ 17.) Three declarants averred that they were not able to take breaks because of the demands of their respective job duties. (Barnes Interrogs. ¶¶ 8, 17; McCloud Interrogs. ¶ 3; Moody Decl. ¶ 5.)
While all of the declarants indicate that Defendants were aware that employees were working unpaid through meal breaks, six declarants specifically asserted that they discussed their concerns about missed, unpaid meal breaks with supervisors or managers. (Curran Interrogs. ¶ 14; Curry Interrogs. ¶¶ 14, 17; McCloud Interrogs. ¶ 17; Srinivasan Interrogs. ¶ 7; Thibodeau Interrogs. ¶ 7; Wilks Interrogs.
Though the declarants each acknowledge that there was a time adjustment form that employees could fill out if they missed a meal break, each avers that they did not do so because Defendants routinely either ignored or discouraged the practice. (Interrogs. ¶ 10.) Four declarants asserted that the forms were never approved. (Barnes Interrogs. ¶ 10; Curry Interrogs. ¶ 10; Thibodeau Interrogs. ¶ 10; McCloud Interrogs. ¶ 10.) Bruce Wilks averred that it was extremely difficult to get the forms approved by a supervisor. (Wilks Interrogs. ¶ 10.) Susan Curran stated that when she did fill out a form, her supervisor rejected it. (Curran Interrogs. ¶ 10.) Two declarants asserted that they were told they would be written up if they submitted a time adjustment form for a missed break. (Curran Interrogs. ¶ 10; Thibodeau Interrogs. ¶¶ 7, 10.) Lacell Cotton stated that he "was discouraged from completing these forms by Defendants" and that on one occasion, he was reprimanded for doing so. (Cotton Interrogs. ¶¶ 7, 10.) Cherie Lindberg averred that, when she informed her supervisor that she had filled out a form, she was told that "it wasn't a very good idea and that they frown upon employees filling them out." (Lindberg Interrogs. ¶ 7.)
Section 216(b) of the FLSA provides that employees may recover unpaid overtime compensation by collectively suing an employer under certain circumstances. 29 U.S.C. § 216(b). Specifically, § 216(b) states:
Id. To proceed collectively, named plaintiffs must therefore demonstrate that they are "similarly situated" to the opt-in plaintiffs—the employees they seek to notify and represent.
To determine whether plaintiffs are similarly situated, courts generally employ a two-phase inquiry. O'Brien v. Ed Donnelly Enters., 575 F.3d 567, 583 (6th Cir. 2009). The first stage occurs early in the discovery process, when the Court determines whether to "conditionally" certify the proposed class. Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546-47 (6th Cir.2006). The purpose of the first stage, or conditional certification, is to provide
This case is at the first stage.
Because the determination at this stage is made using a fairly lenient standard, the Sixth Circuit has recognized that it "typically results in conditional certification of a representative class." Comer, 454 F.3d at 547 (citations omitted). If the court determines that conditional certification is appropriate, "putative class members are given notice and the opportunity to `opt-in.'" Pacheco, 671 F.Supp.2d at 959 (citations omitted).
As noted above, to determine whether to conditionally certify the proposed class, the Court must examine Plaintiffs' pleadings, declarations, and interrogatory answers to determine whether Plaintiffs and the other members of the proposed class are sufficiently "similarly situated" to warrant the issuance of notice to all members of the pendency of the suit, and to permit
Plaintiffs assert that they are similarly situated to "[a]ll persons employed within the three years preceding the filing of this action at [Lakeside] or [CBH] whose pay was subject to an automatic 30 minute meal period deduction even when they performed compensable working during the unpaid `meal break.'" (Am. Compl. ¶ 35.) Under the lenient standard applicable at this first stage, Plaintiffs' evidence is sufficient to demonstrate that Plaintiffs are similarly situated to the putative plaintiffs.
Defendants argue that class certification is inappropriate because Plaintiffs cannot demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violates the FLSA. (Defs.' Resp. 7, 9.) Defendants contend that their auto-deduction policy does not, on its face, violate the FLSA because it provides a mechanism for employees to reverse the automatic deduction. (Id. at 10.) Defendants assert that conditional certification should be denied because Plaintiffs have failed to present evidence that there was a corporate policy of refusing to compensate employees for missed meal periods or a company-wide decision to ignore its written policy regarding reversing the automatic deduction. (Id. at 10-11 (quoting Saleen v. Waste Mgmt., Inc., No. 08-4959 (PJS/JJK), 2009 WL 1664451, at *4 (D.Minn. June 15, 2009)).) In addition, Defendants rely on Pacheco v. Boar's Head Provisions Co., 671 F.Supp.2d 957 (W.D.Mich.2009), in support of their argument that a unified policy of violations is required to support certification. In Pacheco, the district court rejected the clear statement by the Sixth Circuit in O'Brien that "[s]howing a `unified policy' of violations is not required," reasoning that this statement was merely dicta. Id. at 961. Despite Defendant's arguments to the contrary, the Court disagrees with Pacheco and sees no reason to disregard O'Brien.
Notwithstanding the arguably lesser standard enunciated in O'Brien, the Court finds that Plaintiffs have demonstrated an "employer policy" susceptible to challenge at this stage in the proceedings. See Camesi v. Univ. of Pittsburgh Med. Ctr., No. 09-85J, 2009 WL 1361265, at *4 (W.D.Pa. May 14, 2009). In a case with a similar auto-deduction policy, the district court in Kimbell v. Dynamic Strategy concluded that the plaintiffs' evidence was sufficient to demonstrate they were similarly situated to the putative plaintiffs and granted conditional certification. No. 3:09-1175, 2009 WL 1651431, at *5 (M.D.Tenn. June 12, 2009). Kimbell involved an auto-deduction policy in which the plaintiffs' proof showed "that although the [d]efendant had a written policy in place to ensure that time records were edited to reflect missed meal periods, this policy was ignored on numerous occasions." Id. In its analysis, the Kimbell court relied on Department of Labor regulations, which place the burden of controlling "work time"—including that which management "suffered or permitted"—on management.
Likewise, in Camesi, the court granted notice to a class of hourly employees on the basis of the defendant's automatic meal break deduction policy. 2009 WL 1361265, at *4. The defendant had also implemented a policy whereby an employee could affirmatively "cancel" a meal break deduction if he/she worked during a meal break. Id. at *4. The court found that "[t]he law is clear that it is the employer's responsibility, not its employees', to ensure compensation for work `suffered or permitted'" by the employer. Id. (citing cases which reference D.O.L. regulations). The court held that "[d]efendants' arguable attempt to shift statutory responsibilities to their workers [itself] constitutes an `employer policy' susceptible to challenge at this stage in the proceedings." Id. Accordingly, based on plaintiffs' affirmations demonstrating unpaid work time and the defendants' automatic deduction policy, the court found that the plaintiffs had easily met their burden, and granted notice to all of defendants' nonexempt, hourly employees.
As these and similar cases instruct, "it is the failure of an employer to compensate employees who work through ... unpaid meal breaks, and to police and oversee hourly workers and their supervisors to ensure that when working through or during unpaid meal breaks they are compensated, that potentially runs afoul of the [FLSA]." Colozzi, 595 F.Supp.2d at 206-07; see also Wage and Hour Division, U.S. Dep't of Labor, Factsheet No. 53, The Health Care Industry and Hours Worked (2008) ("When choosing to automatically deduct 30-minutes per shift, the employer must ensure that the employees are receiving the full meal break.").
The Court finds these cases persuasive and accordingly, holds that class certification is appropriate where, as here, Plaintiffs have made a modest factual showing that Defendants utilized an auto-deduction policy that placed the burden of correction on hourly employees, Defendants were aware of, permitted, and/or demanded that
Plaintiffs presented evidence that Defendants employed a meal break deduction policy applicable to all non-exempt employees. (Miller Decl. ¶ 13; Turner Decl. ¶¶ 11-12.) Under the policy, thirty minutes were deducted from all hourly employees' time for meals, regardless of whether they actually took such meals. (Interrogs. ¶ 9.) The policy placed the burden on employees to reverse the automatic deduction, requiring employees to fill out a Time Adjustment Form, obtain their supervisor's signature, and submit the form for approval when they missed a meal break. (Miller Decl. ¶ 13; Interrogs. ¶ 10.) This policy was the same at both Lakeside and CBH. (Curran Interrogs. ¶ 9; Moody Decl. ¶ 3.)
Plaintiffs also presented evidence that Defendants failed to ensure that employees took breaks and often required employees to work through all or part of their meal period, because they could not leave patients unsupervised, there was not enough staff to relieve them, or the demands placed on them prevented them from taking a break. (See Interrogs. ¶¶ 3, 9. 17.) According to all the declarants, management was aware that employees were working unpaid through meal breaks. (See id. ¶¶ 7, 14, 17.) Moreover, Plaintiffs presented substantial evidence that Defendants' time adjustment policy was not enforced; instead, the evidence suggests that Defendants routinely discouraged employees from utilizing the time adjustment forms. (See id. ¶¶ 7, 10.)
Taken together, the Court finds that Plaintiffs have made a modest factual showing that they and the putative class members were victims of a common practice that may have resulted in improper compensation. As suggested in Camesi, Plaintiffs' evidence is sufficient to create a reasonable inference that, for all hourly employees of Lakeside and/or UHS subjected to the automatic meal break deduction, Defendants abandoned their duty "to ensure that non-qualifying meal breaks [were] not deducted from [employees'] pay." 2009 WL 1361265, at *4. At this stage in the litigation, evidence of this common practice is enough to warrant conditional certification and notice to all non-exempt employees of Lakeside, UHS, or both.
In opposition to Plaintiffs' motion, Defendants offer a number of additional arguments that conditional certification is not merited in this case. For the reasons discussed below, the Court rejects Defendants' arguments.
Defendants argue that collective certification is improper because Lakeside and CBH are unaffiliated employers with distinct compensation structures and policies such that employees of one company are not similarly situated to employees of the other.
"The FLSA contemplates there being several simultaneous employers who may be responsible for compliance with the FLSA." Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 965 (6th Cir.1991) (citations omitted). "The remedial purposes of the FLSA require the courts to define `employer' more broadly than the term would be interpreted in traditional common law applications." Id. at 965 (quoting McLaughlin v. Seafood, Inc., 867 F.2d 875, 877 (5th Cir.1989)). At the notice stage of certification, where the Court applies a "fairly lenient" standard to determine whether the named plaintiffs have demonstrated they are similarly situated to the putative plaintiffs, several courts have found it proper to conditionally certify an FLSA class that consists of employees of related employers.
Given the lenient standard applicable at this stage in the litigation, the Court finds that Plaintiffs have made an adequate factual showing that Lakeside employees and CBH employees are similarly situated. Both Lakeside and CBH operate behavioral health facilities. (Miller Decl. ¶ 2-3; Turner Decl. ¶ 1.) Lakeside is a wholly-owned subsidiary of UHS. (Klein Decl. ¶ 4 (stating that Lakeside is a limited liability company whose sole managing member is UHS).) CBH is a partially-owned subsidiary of Lakeside. (Id. ¶ 5 (averring that CBH is jointly owned by Lakeside and Southeast Mental Health Center).) The written meal break deduction policies employed by Lakeside and CBH during the relevant time period were identical. (Miller Decl. ¶ 13; Turner Decl. ¶ 11-12.) Plaintiffs presented evidence that Defendants' implementation of the policy was the same at both Lakeside and CBH. (Curran Interrogs. ¶ 9; Moody Decl. ¶ 3.) All of the declarants averred that, in some manngr, they were expressly or impliedly discouraged from utilizing a time adjustment form to reverse an automatic meal break deduction. (Interrogatories ¶ 10.)
This case is therefore distinguishable from Brooks v. A Rainaldi Plumbing, Inc., No. 6:06-cv-631-Orl-31DAB, 2006 WL 3544737 (M.D.Fla. December 8, 2006), in which the Court declined to certify a class comprised of employees from two separate employers. In Brooks, Plaintiffs provided "no explanation" as to why the
Taken together, the Court finds that employees of Lakeside and CBH may be members of the same conditionally certified class.
Defendants argue that conditional certification is inappropriate because individual issues may dominate due to the nature of Plaintiffs' claim. (Defs.' Resp. 11-13.) This argument is unavailing. "When a plaintiff has made the minimal showing required at the notice stage, the defendant cannot overcome [the] [p]laintiff's showing by arguing that individual issues may dominate; rather, that issue must be raised in a motion to decertify at the second stage of the certification process." Noble v. Serco, Inc., 2009 WL 3154252, at *4, 2009 U.S. Dist. LEXIS 89709, at *10-11 (E.D.Ky. Sept. 28, 2009); see also O'Brien, 575 F.3d at 585 ("[T]he plaintiffs were similarly situated, because their claims were unified by common theories of defendants' statutory violations, even if the proofs of these theories are inevitably individualized and distinct."). Defendants' arguments are more appropriately raised at the decertification stage.
Defendants also argue that this case is inappropriate for collective action treatment because the plaintiffs have highly disparate job functions and duties that will require the Court to engage in an individualized inquiry. (Defs.' Resp. 13-16.) The Court disagrees. This case is at the initial notice stage where Plaintiffs need only show that their positions are "similar, not identical, to the positions held by the putative
Defendants argue that, even if Plaintiffs meet their burden for conditional certification, the proposed class is overbroad. (Defs.' Resp. 17.) Defendants contend that the Court should limit the scope of the class to employees in direct-care positions.
In support, Defendants cite Hintergerger and Colozzi, where New York district courts limited the class of plaintiffs in auto-deduction cases to direct care employees. Hintergerger, 2009 WL 3464134, at *5; Colozzi, 595 F.Supp.2d at 208. In Hintergerger, the court reasoned that the class should be limited to direct-care positions in light of common allegations that employees were expected to work during meal breaks to engage in patient care. 2009 WL 3464134, at *5-6. The court reasoned that these same concerns could not be said to extend to "hourly workers engaged in clerical, food service, maintenance, and other positions that do not involve that same level of immediate and direct patient care." Id.; accord Colozzi, 595 F.Supp.2d at 208 (concerns of "short staffing and patient care demands" were issues that "obviously do not extend to non-patient care workers"); Fengler, 595 F.Supp.2d 189, 192 (N.D.N.Y.2009) (same); Hamelin v. Faxton-St. Luke's Healthcare, No. 6:08-CV-1219 (CNH/DEP), 2009 WL 211512, at *3 (N.D.N.Y. Jan. 26, 2009) (same).
Other district courts, however, have refused to limit the class of putative plaintiffs to direct-care positions. For example, in Camesi, the court rejected the defendants' argument that notice should be limited to nurses because the named plaintiffs demonstrated that the objectionable auto-deduction policy applied to "all non-exempt employees, regardless of job title or work location." 2009 WL 1361265, at *5. The court concluded that, because the defendants' policy was susceptible to challenge at the notice stage, the entire class of hourly employees to which the policy applied were entitled to notice. Id.
Similarly, in Kuznyetsov, the court rejected the defendants' argument that notice should be limited to employees with patient care responsibilities because the plaintiffs' affidavits did not restrict the reasons for working through meal breaks to patient care. 2009 WL 1515175, at *3. Rather, the affiants also asserted that they worked through meals due to staffing issues. Id.; accord Taylor, 2009 WL 2003354, at *1 (refusing to limit the class to direct-care employees where the affiants identified both patient care needs and staffing shortfalls as reasons for working through meal breaks).
In this case, Plaintiffs have demonstrated both that the meal break deduction policy applied to all non-exempt employees and that the reasons employees worked through meal periods extended beyond patient care requirements. Though all but one declarant averred that their respective duties involved patient care or supervision,
Accordingly, the Court rejects Defendants' argument that the scope of Plaintiffs' class should be limited to employees working in direct care positions. At this stage, notice is appropriate to all hourly employees subject to Defendants' meal break deduction policy. Defendants challenge regarding the putative collective action members is more appropriate in the second stage of class certification, after discovery is complete.
Pursuant to Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989), the Court exercises its discretion to approve that potential members of the above-described class be notified and given an opportunity to opt-in to the action. To facilitate this notice, the Court orders Defendants to produce to Plaintiffs a computer readable data file containing the contact information for all potential opt-in plaintiffs. This contact information shall include the name, last known address, last known telephone number, employee number, last four digits of the Social Security number, work location(s), and dates of employment for each individual who was or is employed by Lakeside or UHS during the three years prior to January 7, 2010. Defendants have thirty (30) days in which to produce this information.
To facilitate notice, Plaintiffs also request that Defendants be required to (i) post notice of this lawsuit at each workplace; and (ii) include notice in the next paycheck of all employees. (Pls.' Mem. 19.) Though Defendants do not object, the Court finds that such alternative methods of notice are premature. In FLSA cases, first-class mail is generally considered to be the "best notice practicable" to ensure that proper notice is received by potential class members. See, e.g., Hintergerger, 2009 WL 3464134, at *13 (citing cases). If Defendants fail to produce the contact information, or production is incomplete or inaccurate, the Court may determine that alternative methods of notice are warranted.
Plaintiffs filed a proposed notice with their motion for conditional certification. (D.E. 3 1-4.) Defendants objected to various portions of the notice. (Defs.' Resp. 18-20.) At the telephonic hearing on Plaintiffs' motion, the Court instructed the parties to confer and submit changes to Plaintiffs' proposed notice. (D.E. 65.) The parties filed a Joint Proposed Notice on December 9, 2010. (D.E. 69.)
In light of this decision, additional modifications to the Joint Proposed Notice are warranted. The Court declines to take on the task of analyzing the joint proposed notice and attempting to conform its language to the strictures of this Order. The Court cautions, however, that the proposed notice should include language specifically referencing Lakeside's and UHS's meal break deduction policy. See Camesi, 2009 WL 1361265, at *6 (noting that the plaintiffs' proposed notice was objectionable because it alleged general failures of the defendants to pay overtime without any
Accordingly, the Court directs the parties to confer and develop a mutually acceptable notice letter. Should the parties be unable to reach agreement, they shall submit their respective proposals to the Court along with supporting memoranda not to exceed five (5) pages in length. The parties' stipulated notice form or respective proposals shall be filed within ten (10) days of entry of this Order.
For the foregoing reasons, Plaintiffs' Motion for conditional class certification is GRANTED.
IT IS HEREBY ORDERED, that Plaintiffs' Motion for Conditional Class Certification and Court-Authorized Notice Pursuant to the FLSA, 29 U.S.C. § 216(b) (D.E. 31) is GRANTED with respect to the following class:
IT IS FURTHER ORDERED that this case may proceed as a collective action under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq.;
IT IS FURTHER ORDERED that within thirty (30) days of the date of entry of this Order, Defendants shall provide to Plaintiffs the contact information for all potential members of the conditionally certified class, as directed above;
IT IS FURTHER ORDERED that within ten (10) days of the date of entry of this Order, the parties shall file a stipulated notice form or respective proposals, as directed above; and
IT IS FURTHER ORDERED that, once the notice is approved in form, and within sixty (60) days of such approval, it shall be sent by first-class mail to all potential plaintiffs.
(Miller Decl. 9, Tab 2.)
29 C.F.R. § 785.13.
