LYNN ADELMAN, District Judge.
This is a wage-and-hour case alleging that Waukesha Memorial Hospital failed to pay certified nursing assistants ("CNAs") and housekeepers for time they spent working during meal periods. Before me now are the plaintiffs' motion to certify state-law classes under Federal Rule of Civil Procedure 23 and the defendants' motion to decertify a collective action that I previously conditionally certified under the federal Fair Labor Standards Act ("FLSA").
Waukesha Memorial pays its CNAs and housekeepers on an hourly basis and requires them to use a computerized timekeeping system. Employees "swipe in" at the beginning of a shift and "swipe out" at the end. If a shift will last longer than six hours, the employee is supposed to receive a thirty-minute, unpaid meal period. Under Waukesha Memorial's written timekeeping policy, an employee who intends to remain on hospital premises during his or her meal period does not need to swipe out at the beginning of the meal period and back in at the end; rather, the timekeeping system will automatically deduct thirty minutes from the employee's shift. However, if the employee intends to leave the hospital during the meal period, the employee must swipe out and back in. Under the written policy, "[i]f a meal break is not taken or the employee stays on campus and takes less than a 30 minute meal break," the employee must use the "cancel lunch" function of the timekeeping system to indicate that the employee did not take a full meal period and therefore should not have thirty minutes deducted from his or her compensable time. ECF No. 36-5 at WMH125. If the employee works during his or her lunch and does not use the "cancel lunch" function, the timekeeping system will still subtract thirty minutes from the employee's shift.
The plaintiffs' claims in this suit relate to their use of communication devices during meal periods. Plaintiff Angelina Nunez was formerly employed as a CNA at Waukesha Memorial, and plaintiff Evangelina Aguilera is currently a housekeeper at Waukesha Memorial. Nunez carried a wireless phone at all times during her shift, including during meal periods. Nunez Decl. ¶ 5, ECF No. 34. Aguilera carries a pager at all times during her shift, including during meal periods. Aguilera Decl. ¶ 9, 18, ECF No. 79. Both Nunez and Aguilera state that Waukesha Memorial required them to monitor their communication devices during their meal periods. They further state that they were "frequently" interrupted by calls on their devices during their meal periods and "often" had to leave their meal periods to perform work in response to those calls. Nunez Decl. ¶ 7, ECF No. 34; Aguilera Decl. ¶ 7, ECF No. 33. Nunez states that her supervisor told her that she was not supposed to cancel her lunch on the timekeeping system when her lunch was interrupted by phone calls or when she was asked to perform work during her meal period; as a result, she rarely, if ever, cancelled her lunch when she worked or was interrupted during her meal periods and thus was not paid for those meal periods. Nunez Dec. ¶ 15, ECF No. 34. Aguilera does not state that her supervisor told her not to use the cancel-lunch function when she was interrupted during a meal period, but she states that she "understood" that Waukesha Memorial would not pay her if she performed work or answered calls to her pager during a meal period. Aguilera Decl. ¶ 15, ECF No. 33.
Nunez and Aguilera also state that they understood that they could not leave Waukesha Memorial's premises during their meal periods. Aguilera states that she inferred that she cold not leave the premises from her supervisor's instructions that (a) she could not take her pager off of Waukesha Memorial's premises and (b) she had to carry her pager at all times. Aguilera Decl. ¶ 27-29, ECF No. 79. Nunez states that "Waukesha Memorial required [her] to stay on its premises during [her] meal breaks." Nunez Decl. ¶ 11, ECF No. 34. Nunez does not identify how this requirement was communicated to her, such as through a supervisor or a written policy.
The named plaintiffs claim that because they carried, monitored, and responded to calls during their meal periods, and because they were not free to leave Waukesha Memorial's premises during their meal periods, they were entitled to have their meal periods treated as compensable time under the FLSA and Wisconsin's wage-and-hour law. They seek back pay for the meal periods in which they were interrupted and/or could not leave the premises, including overtime wages for the weeks in which treating meal periods as compensable time would result in their having worked more than forty hours.
The named plaintiffs believe that all CNAs and housekeepers at Waukesha Memorial are required to carry and respond to communication devices during their meal periods, and that because communication devices may not be taken off of hospital premises, none of them are free to leave the premises during their meal periods. Nunez thus seeks to represent a class defined to include all CNAs who worked at Waukesha Memorial at any time since February 13, 2012, and were not paid for meal periods during which they carried, monitored, and/or answered a hospital-based wireless phone. Mot. to Certify Class ¶ 1. Likewise, Aguilera seeks to represent a class defined to include all housekeepers who worked at Waukesha Memorial at any time since November 5, 2011, and were not paid for meal periods during which they carried, monitored, and/or answered a hospital-based communication device.
The proposed classes would, if certified, advance only state-law claims for back pay. With respect to the federal FLSA claims, I have already conditionally certified a "collective action."
At the present stage of the case, the named plaintiffs have moved for class certification under Federal Rule of Civil Procedure 23(b)(3) in connection with their statelaw claims. The defendants—Waukesha Memorial and its parent, ProHealth Care, Inc.—have moved to decertify the FLSA collective action. I consider these motions below.
A district court may certify a class of plaintiffs if the proposed class satisfies all four requirements of Federal Rule of Civil Procedure 23(a)—numerosity, commonality, typicality, and adequacy of representation—and any one of the conditions of Rule 23(b).
In the present case, there is no dispute that the numerosity and adequacy-of-representation requirements have been satisfied. Whether classes may be certified turns on whether the proposed classes satisfy the commonality and typicality requirements and the requirements of Rule 23(b)(3). Moreover, because commonality and typicality tend to be related,
Rule 23(a) requires a plaintiff seeking class certification to show that "there are questions of law or fact common to the class." The Supreme Court has interpreted this requirement to mean that the claims of the proposed class must depend on a common contention that is "of such a nature that it is capable of classwide resolution—which means that the determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke."
In the present case, the plaintiffs' claims arise under Wisconsin Statute § 109.03(1), which requires an employer to timely pay all required wages to its employees. But the focus of the plaintiffs' claims is on an administrative regulation promulgated by the Wisconsin Department of Workforce Development ("DWD") that explains when meal periods are compensable:
Wis. Admin. Code § DWD 274.02(3). The plaintiffs contend that Waukesha Memorial violated this regulation by allowing or requiring CNAs and housekeepers to "carry, monitor, and/or respond" to communication devices during their meal periods—which the plaintiffs contend constituted "work"—without using the cancel-lunch function of the timekeeping system. The plaintiffs also contend that because CNAs and housekeepers were required to carry devices during their meal periods, and because such devices could not leave the hospital's premises, CNAs and housekeepers were not free to leave the hospital's premises during their meal periods and therefore should have been considered on duty during that time.
The plaintiffs contend that the above claims present two common questions: (1) whether carrying, monitoring, or answering communication devices during unpaid meal periods constitute "work" within the meaning of the DWD regulation, and (2) whether members of the classes were free to leave the hospital's premises during their meal periods.
The plaintiffs' first proposed common question is whether carrying, monitoring, or answering communication devices during unpaid meal periods constitutes "work" within the meaning of the DWD regulation. However, this question cannot be answered for the entire class in one stroke. The problem is that the phrase "carrying, monitoring, or answering communication devices" describes a wide spectrum of activities, some of which might be work and some of which might not. On one end of the spectrum is an employee who simply carries a device during a meal period but receives no calls or ignores any calls he or she receives; at the other end is an employee who monitors her device, is constantly interrupted by calls, and is frequently asked to leave her meal period to perform a task such as assisting a patient or making a bed. In between are employees whose experiences include things like receiving a call but forwarding it to another employee who is on duty, receiving a call and responding by doing no more than informing the caller that the employee is on break, receiving a call and answering a work-related question, and receiving a call and then performing a task—all of which could happen with varying frequency.
Waukesha Memorial did not adopt any hospital-wide policies that resulted in proposed class members using their communication devices in roughly the same manner, such that the jury could simply assess whether the policy resulted in all class members performing work during meal periods. Rather, the evidence in this case shows that different practices arose in the various departments of the hospital and across different shifts. For example, some CNAs are not required to monitor their phones at all during their meal periods or may forward their calls to someone who is on duty. Fiebelkorn Dep. at 31-33, 35, ECF No. 69-22; Flottum-Zurcher Dep. at 124, ECF No. 69-24; Brochtrup Dep. at 43, ECF No. 69-25; Greeson Dep. at 47, 97, ECF No. 69-23; Reish Dep. at 78-79, ECF No. 69-21. Indeed, one of the opt-in plaintiffs testified that she would ignore any calls she received while on lunch. Zimmerman Dep. at 35-36, ECF No. 69-18.
With respect to housekeepers, there is evidence that some have never been contacted during a meal period. Brown Decl., ECF No. 99; Gateris Decl., ECF No. 100; Heling Decl., ECF No. 101; Ortega Decl., ECF No.102; Smith Decl., ECF No. 103.
In light of the differing circumstances experienced by CNAs and housekeepers,
The plaintiffs' other proposed common question is whether CNAs and housekeepers are free to leave Waukesha Memorial's premises during their meal periods. Waukesha Memorial does not have a written policy stating that CNAs and housekeepers are prohibited from leaving hospital premises during their meal periods.
Again, however, the evidence does not show that all CNAs and housekeepers were subject to the same policies and practices concerning the use of communication devices during meal periods. With respect to housekeepers, one supervisor testified that her employees had the option of leaving their communication devices at the hospital if they wanted to leave for lunch. Tabatabaie Dep. at 94-100, ECF No. 69-31. Another supervisor testified that housekeepers may take their pagers off of hospital premises during their meal periods. Velazquez Dep. at 51-52, ECF No. 51-52. A third supervisor, Adriana Caballero, testified that she has told housekeepers that they may leave hospital premises during their meal periods and described specific instances in which housekeepers left hospital premises during their meal periods. Caballero Dep. at 87-91. In one instance, a housekeeper swiped out to make a trip to the bank.
To be sure, the evidence suggests that CNAs and housekeepers rarely leave hospital premises during their meal periods. But this does not prove that there is a common policy or practice that applies to all CNAs and housekeepers that
Thus, the plaintiffs have not shown that there is a single answer to the question of whether housekeepers and CNAs were free to leave the premises during their meal periods. Some might have been required to remain on campus, and others might have been free to leave. Individualized inquiries will be needed to identify the policies or practices that applied to each employee, and therefore "whether CNAs and housekeepers were free to leave the premises during their meal periods" is not a common question of law or fact.
Because the plaintiffs have not satisfied the commonality requirement, their claims cannot proceed on a class basis, and thus I will not separately consider whether they have shown that the Rule 23(b)(3) requirements are satisfied.
As noted, I previously conditionally certified a collective action of housekeepers and CNAs at Waukesha Memorial. Although I certified separate classes of housekeepers and CNAs, the class definition for each class is the same, namely:
Twenty-four members of the above class have opted into the suit.
Seventeen of the twenty-six plaintiffs have submitted declarations in which they describe the extent to which they were required to use communication devices during their meal periods.
Although seventeen of the plaintiffs appear to be similarly situated, I cannot identify any common question of law or fact that applies to all twenty-six plaintiffs. Although the question of whether the seventeen plaintiffs who experienced frequent interruptions received bona fide meal periods may be common to them, the question does not apply to Zimmerman, who did not monitor her device or answer any calls during meal periods. Because I do not know anything about the experiences of the remaining eight plaintiffs, I do not know whether their claims will involve any questions that are common to the claims of the other plaintiffs.
As discussed in the context of the plaintiffs' motion for class certification, there is no hospital-wide policy that dictates how or how often a housekeeper or CNA must use his or her communication device during a meal period. Such usage seems to vary based on shift, department, and supervisor. There is thus a fundamental problem with proceeding with a collective (or class) action in this case: there is simply no way to resolve the claims of each class member without independently establishing the facts that apply to that plaintiff and then determining whether his or her use of a communication device during a meal period qualified as work. To put the problem differently, there is no way to resolve the class's claims on a representative basis. The jury could not hear evidence concerning the experiences of the named plaintiffs, decide whether or not they performed work during their meal periods, and then extrapolate to reach conclusions about the rest of the class. Even if the experiences of some of the other class members were similar to the experiences of the named plaintiffs, such that the jury needed to answer the question of whether how they used their communication devices during meal periods qualified as work only once, at the very least the other class members would need to testify to establish that they used their communication devices in the same way as the named plaintiffs. And almost certainly every class member will have had at least slightly different experiences, which means that the jury will likely need to separately determine for each class member whether his or her use of a communication device during a meal period qualified as work. Thus, this case cannot proceed as a collective action.
My conclusion that this case cannot proceed as a collective action does not mean that those plaintiffs who have had similar experiences cannot proceed collectively. Under Federal Rule of Civil Procedure 22(a), persons may join in one action as plaintiffs if their claims arise out of the same series of transactions or occurrences and any question of law or fact common to all plaintiffs will arise in the action. Here, the seventeen plaintiffs who allege that they experienced frequent interruptions during meal periods could join in one action. Although each plaintiff would have to independently establish the facts underlying his or her claim, all claims would involve the common question of whether, if the alleged facts were true, the plaintiffs did not receive bona fide meal periods. Thus, while I will decertify the collective action, I will grant the plaintiffs an opportunity to file an amended complaint in which all housekeepers and CNAs who claim to have used their communication devices as frequently as Aguilera and Nunez are named as plaintiffs. To the extent that there are opt-in plaintiffs who intend to pursue individual claims but are not similarly situated to Nunez or Aguilera, they may file separate individual suits, and then those suits will be assigned to me under this court's related-case rule.
For the reasons stated,
