Solsol et al v. Scrub, Inc. et al

Filing 339

Memorandum Opinion and Order signed by the Honorable Robert W. Gettleman on 4/27/2015: Plaintiffs' motion 304 for conditional class certification is granted in part and denied in part. Mailed notice (gds)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DORIS M. SOLSOL and YOLI SANDRA )
RODRIGUEZ DIAZ, Individually and on )
Behalf of All Others Similarly Situated,
)
)
Plaintiffs,
)
)
v.
)
)
SCRUB, INC. and TERESA KAMINSKA, )
)
Defendants.
)

No. 13 CV 7652
Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER
Plaintiffs Doris Solsol and Yoli Rodriguez Diaz, individually and on behalf of all others
similarly situated, have brought a putative collective action complaint against defendants Scrub,
Inc. (“Scrub”) and Teresa Kaminska, alleging violations of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq. Plaintiffs move for conditional class certification pursuant to
29 U.S.C. § 216(b) and issuance of a notice of the collective action to potential class members.
For the reasons stated below, plaintiffs’ motion is granted in part and denied in part.
BACKGROUND
Scrub is a company that provides janitorial services in the Chicago area. Defendant
Kaminska was formerly the Owner and President of Scrub, but now serves as the company’s
Vice President of Operations. The overwhelming majority of Scrub employees work at O’Hare
International Airport (“O’Hare”). Since at least October 2010, Scrub employees working at
O’Hare provided an array of janitorial services under one of three types of contracts the company
had at the airport. Until December 2012, approximately 422 Scrub janitors, including the named
plaintiffs, worked under Scrub’s contract with the City of Chicago to clean public walkways and

bathrooms at O’Hare.1 During the relevant time period, Scrub also contracted with commercial
airlines and other private companies to provide janitorial services for O’Hare’s gate, concourse,
ticketing, and office areas. Finally, Scrub had separate contracts with airlines to clean airplane
cabins. Another 145 Scrub janitors worked at non-airport locations.
Scrub janitors working at O’Hare clock in and out at the start and end of their shifts. At
non-airport locations, Scrub janitors orally report the amount of time worked to supervisors.
Regardless of which way Scrub employees report their time, supervisors fill out Supervisor
Payroll Input Sheets (“input sheets”) to record the time each janitor worked on a given day.
Sarah Coady, Scrub’s Payroll Specialist, uses these input sheets, not the time cards or oral
representations, to tabulate Scrub’s employee payroll.
Plaintiffs claim that their compensation, as determined by the input sheets, violates the
FLSA for several reasons. First, plaintiffs allege that defendant Kaminska trained Scrub
supervisors to report on the input sheets scheduled hours only “for the days that [employees] are
there and that they are not late and don’t leave early.” According to plaintiffs, this practice
means that a janitor who starts work early and leaves on time or starts work on time and works
late is not compensated for the additional time she worked. Second, plaintiffs allege that
supervisors are taught to round a janitor’s time to the nearest 15 minutes when she arrives late or
leaves early. For example, a janitor who arrives 5 minutes late may be docked 15 minutes and,
thus, is uncompensated for 10 minutes of work. Third, plaintiffs allege that 30 minutes are
automatically deducted from each janitor’s scheduled shift to account for a meal break, even if
the janitor is ordered to return to work during the break.
Plaintiffs seek to conditionally certify a class pursuant to 29 U.S.C. § 216(b), defined as:
“All hourly non-exempt employees of Defendants (or their subsidiaries, affiliates, predecessors
1

Defendants do not contest conditional certification of a class of these 422 employees.
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and/or successors), employed between October 24, 2010 through to the present, whose payroll
was calculated from supervisor payroll input sheets and who were not paid for all time worked.”
At the time plaintiffs filed the instant motion, 276 Scrub janitors had opted into the putative
collective action, representing approximately 9 percent of Scrub’s more than 3,500 hourly
janitorial employees.
DISCUSSION
A.

Legal Standard
Section 216(b) of the FLSA permits plaintiffs to bring a collective action against an

employer for unpaid minimum wages or overtime compensation on behalf of themselves and
others “similarly situated.” 29 U.S.C. § 216(b). A collective action under section 216(b) differs
from a class action under Fed. R. Civ. P. 23 in that Rule 23 binds class members unless they opt
out, whereas collective action members are bound under section 216(b) only if they opt into the
action by providing their written consent. Woods v. New York Life Ins. Co., 686 F.2d 578, 57980 (7th Cir. 1982).
Courts in this district employ a two-step process for determining whether an FLSA
lawsuit should proceed as a collective action. Dailey v. Groupon, Inc., No. 11-C-5685, 2014 WL
4379232, at *3 (N.D. Ill. Aug. 27, 2014). The first step requires the named plaintiff to establish
that the potential class members are similarly situated by making a modest factual showing that
they were victims of a common policy or plan to violate the law. Id. “[T]he similarly situated
standard is a liberal one . . . [that] typically results in conditional certification of a representative
class.” Rottman v. Old Second Bancorp, Inc., 735 F. Supp. 2d 988, 990 (N.D. Ill. 2010) (internal
quotations omitted). Similarly, the modest factual showing standard is lenient and demands only
some factual support. Johnson v. Pinstripes, Inc., No. 12-C-1018, 2013 WL 5408657, at *2

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(N.D. Ill. Sept. 26, 2013). In applying these standards, “the court does not consider the merits of
a plaintiff's claims, or witness credibility.” Nehmelman v. Penn Nat. Gaming, Inc., 822 F. Supp.
2d 745, 751 (N.D. Ill. 2011).
At the second step, which takes place following discovery, the analysis is more rigid and
requires the court to consider: “(1) whether the plaintiffs share similar or disparate factual and
employment settings; (2) whether the various affirmative defenses available to the defendant
would have to be individually applied to each plaintiff; and (3) fairness and procedural
concerns.” Dailey, 2014 WL 4379232, at *3. “At that time, a defendant may move to decertify
the case or divide the class into subclasses.” Johnson, 2013 WL 5408657, at *3 (internal
quotations omitted).
B.

Analysis
At this stage of the proceedings, the court must determine whether the named plaintiffs

have made a “modest factual showing” sufficient to demonstrate that the proposed class
members were potentially victims of a common policy or plan that violated the FLSA. Gambo v.
Lucent Technologies, Inc., No. 05-C-3701, 2005 WL 3542485, at *4 (N.D. Ill. Dec. 22, 2005).
As discussed above, defendants do not contest conditional certification of all Scrub janitors who
worked at O’Hare under the company’s contract with the city. Defendants, however, do contest
including as a part of the collective action Scrub janitors who worked outside of O’Hare
(approximately 145 employees) and janitors who worked at O’Hare under private contracts
(approximately 3,500 employees). In opposition to conditional certification of this broad class,
defendants argue that plaintiffs have failed to present evidence to support a showing that a
common policy or plan existed in regard to these two groups of prospective plaintiffs.
Specifically, defendants contend that plaintiffs have not presented any evidence concerning

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Scrub janitors who worked at non-airport locations and have presented limited evidence
concerning O’Hare janitors who did not work under the city contract.
As discussed above, plaintiffs claim that defendants violated that FLSA in three ways.
First, plaintiffs contend that defendants violated the FLSA by paying janitors only for the time
they were scheduled to work, even when a janitor began work before or worked after her
scheduled shift time. Plaintiffs have submitted a substantial amount of evidence in support of
this allegation, including testimony from defendants’ witnesses, employee time cards and input
sheets, and declarations from opt-in plaintiffs. Most significantly, a multitude of employee
punch cards show that many Scrub janitors worked more hours than the scheduled 8 hours
supervisors reported on their input sheets.2 Because janitor pay is determined by the input sheets
and not the employee punch cards, it appears that janitors were frequently underpaid. These
punch cards and input sheets, without more, provide more than a sufficient showing that a
practice of violating the FLSA was in place. See Campbell v. Advantage Sales & Mktg., LLC,
No. 09-CV-1430, 2010 WL 3326752, at *4 (S.D. Ind. Aug. 24, 2010) (explaining that an
employer may be liable for an FLSA violation occurring as the result of a common practice); see
also Russell v. Illinois Bell Tel. Co., No. 08-C-1871, 2010 WL 2595234, at *9 (N.D. Ill. June 28,
2010).
In addition to this physical evidence, plaintiffs also argue that defendant Kaminska’s
testimony and declarations from various opt-in plaintiffs support their claim of a common policy
or plan to pay janitors only for their scheduled shift time. For example, one opt-in plaintiff
stated in her declaration that she was trained to report scheduled shifts on input sheets even when
2

Defendants incorrectly contend that plaintiffs identified only a single janitor who worked at
O’Hare under a private contract whose punch cards and input sheets did not match. While
plaintiffs pointed to only one such employee in their motion, the attached exhibits provide
numerous examples of Scrub janitors working under private contracts at O’Hare who were
underpaid based on when they punched in and out.
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employees began work early or finished work late. Similarly, defendant Kaminska testified,
although somewhat inconsistently, that she trained supervisors to mark only scheduled hours “for
the days that [employees] are there and that they are not late and don’t leave early” and that
Scrub paid janitors “from the time when [their] shift starts.”
Defendants’ contentions that employees were not required to come to work early is
irrelevant for purposes of the FLSA. The FLSA obligates employers to pay employees for work
“even where the employer has not requested the overtime be performed or does not desire the
employee to work, or where the employee fails to report his overtime hours.” Kellar v. Summit
Seating Inc., 664 F.3d 169, 177 (7th Cir. 2011). Nonetheless, plaintiffs have submitted some
evidence that janitors were in fact required to arrive before their scheduled shift time. For
example, two opt-in plaintiffs who had supervisory roles in addition to their janitorial work
submitted declarations that they were trained to require janitors to arrive at least 15 minutes prior
to the start of their scheduled shifts to collect and prepare supplies and equipment.
Contrary to defendants’ contentions, the evidence thus far also indicates that when
janitors arrived early they performed compensable tasks, such as collecting supplies, completing
mandatory stretches, and performing other activities that were essential to their work. Similarly,
defendants’ argument that supervisors did not know janitors were beginning work early is not
supported by the evidence or defendants’ own position. If, as defendants contend, supervisors
were calculating employee hours for the input sheets based on when the employee punched in
and out, and not solely on the employee’s scheduled shift time, supervisors should have been
aware that employees were working more than their scheduled hours.
Defendants contend that plaintiffs’ evidence fails to establish a common unlawful policy
or plan, because “multiple Scrub witnesses have testified that there is . . . no company policy to

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round janitor time entries to the scheduled hours, and that individual supervisors devise their
own rounding practices, if any.” Plaintiffs, however, have presented evidence from multiple
Scrub employees with different levels of responsibility who all stated that supervisors were
trained to engage in the alleged practice. While the implementation of this alleged policy may
vary from supervisor to supervisor, the evidence plaintiffs offer concerning common training is
sufficient at this stage to show a common policy. “[A] formal policy is not required, and indeed,
even where a formal policy is compliant with the FLSA on its face, an employer may still be
liable for FLSA violations occurring in common practice.” Campbell, 2010 WL 3326752 at *4.
Plaintiffs have clearly presented more than a modest showing of common practices. Moreover,
while there may be conflicting evidence on this issue, weighing the evidence is not appropriate at
this stage of the litigation, see, e.g., Nehmelman, 822 F. Supp. 2d at 751, and, as discussed
above, plaintiffs have offered at least some evidence that such a policy did in fact exist, which is
all that conditional class certification requires.
Second, plaintiffs allege that defendants violated the FLSA by rounding janitor time to
the nearest 15 minutes when janitors arrived late to work. In support of this allegation, plaintiffs
point to Scrub’s General Manager’s testimony that “all hourly janitorial employees of Scrub are
subject to have their actual hours recorded on their time cards to be rounded in some way.”
Plaintiffs’ allegation is further supported by an opt-in plaintiff’s description of how she was
trained to deduct 15 minutes when a janitor was 5 or more minutes late and how she observed
others imposing the same deductions.
Finally, plaintiffs allege that defendants deducted 30 minutes from the time janitors
worked each day to account for meal breaks. Defendants allegedly did so even though janitors
were routinely interrupted during breaks and ordered to work. According to plaintiffs, janitors

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who were responsible for cleaning airplane cabins were always on call and, according to one,
“[could] not refuse to clean a plane during our meal break.” Contrary to defendants’ arguments,
an individualized inquiry into “whether an individual has a claim for work performed during the
meal period” is not required at this time. See, e.g., Brand v. Comcast Corp., No. 12-CV-1122,
2012 WL 4482124, at *6 (N.D. Ill. Sept. 26, 2012) (“That plaintiff’s FLSA claims may later
require a more individualized inquiry does not preclude authorizing notice of their claims at this
first stage.”).
As outlined above, plaintiffs have presented sufficient evidence to make the modest
factual showing of a common policy or plan to violate the FLSA in regard to employees who
worked at O’Hare. Consequently, conditional class certification is appropriate as to all Scrub
janitors who worked at O’Hare. Plaintiffs, however, have not presented any evidence concerning
the 145 Scrub employees who worked at non-airport locations, and therefore have failed to make
any showing that the named plaintiffs are similarly situated to those individuals. As such,
conditional class certification is not appropriate in regard to Scrub janitors who did not work at
O’Hare.
In addition to disputing the scope of the putative class, the parties also disagree on the
logistics of issuing notice and the wording of that notice. Defendants object to plaintiffs’
proposed class definition including reference to Scrub subsidiaries, affiliates, predecessors,
and/or successors. Defendants also contend that the proper notice period is three years from the
date of the certification order, not three years prior to the date plaintiffs filed their complaint.
Finally, defendants oppose any form of notice other than by mail and seek to limit the opt-in
period to 60 days.

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The parties are directed to meet and confer concerning a mutually agreeable notice. The
court, however, issues the following guidelines regarding the parties’ disputes. The court rejects
including reference to Scrub subsidiaries, affiliates, predecessors, and or/successors, because
plaintiffs have not identified any such entities nor have they provided any persuasive evidence
that such entities are at issue in this lawsuit. Should discovery reveal any such entities, plaintiffs
may seek appropriate relief. Additionally, because plaintiffs have alleged a willful violation of
the FLSA, the class period shall begin on October 24, 2010, three years prior to plaintiffs filing
suit. See 29 U.S.C. § 255(a) (setting a three-year limitations period for willful violations); See
also, Babych v. Psychiatric Solutions, Inc., No. 09-C-8000, 2011 WL 5507374, at *8 (N.D. Ill.
Nov. 9, 2011) (“the relevant time-period is the three years prior to the filing of [plaintiff’s]
complaint”); Lukas v. Advocate Health Care Network and Subsidiaries, No. 14-C-2740, 2014
WL 4783028 (N.D. Ill. Sept. 24, 2014). Given that plaintiffs do not appear to take issue with
including a disclaimer concerning the court’s position on the case, one shall be included in the
notice. Additionally, notice shall be provided in English, Spanish, and Polish.
In regard to the logistics of distributing notice, the court requires defendants to turn over
only the names and addresses of potential class members, and if notices are returned undelivered,
individual phone numbers and email addresses shall be provided, as needed, subject to
production under a protective order limiting the use of that information. In addition to mailing
out notices, plaintiffs are also permitted to have notices posted at all Scrub offices at O’Hare.
Including notices with employee paychecks is not necessary at this time. Defendants’ suggested
disclaimer concerning non-retaliation seems sufficient to quell any concerns potential class
members may have about joining the collective action. Finally, in light of the large number of

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potential class members, the court concludes that a 75-day period is a reasonable amount of time
to give potential plaintiffs to join the lawsuit.
CONCLUSION
For the foregoing reasons, plaintiffs’ motion for conditional class certification and
issuance of a notice of the collective action is granted in part and denied in part. The court
conditionally certifies a class consisting of all individuals who were and/or are currently
employed by Scrub as hourly non-exempt employees at O’Hare International Airport between
October 24, 2010, through to the present, whose payroll was calculated from supervisor payroll
input sheets and who were not paid for all time worked. Plaintiffs’ motion is denied to the extent
that plaintiffs requested conditional certification of a class that included Scrub janitors who work
or worked at non-O’Hare locations. The parties are ordered to meet and confer regarding a
mutually agreeable notice that is to be submitted to the court on or before June 2, 2015. This
matter is set for status on June 9, 2015.

ENTER:

April 27, 2015

__________________________________________
Robert W. Gettleman
United States District Judge

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