Briggs et al v. PNC Financial Services Group, Inc. et al
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 3/16/2016:Mailed notice(kef, )
IN THEUNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DOMONIQUE NATASHA BRIGGS
and SAMAR HASSAN, on behalf of
themselves and all others similarly
situated,
Plaintiffs,
v.
PNC FINANCIAL SERVICES
GROUP, INC., and PNC BANK, N.A.,
Defendants.
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No. 15-CV-10447
Hon. Amy J. St. Eve
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
Plaintiffs Domonique Natasha Briggs and Samar Hassan (collectively, “Plaintiffs”), on
behalf of themselves and all others similarly situated, have moved the Court to conditionally
certify the proposed collective action and approve Plaintiffs’ proposed “Collective Action Notice
and Consent to Join Form.” [23]. For the following reasons, the Court, in its discretion, grants
Plaintiffs’ motion.
BACKGROUND
On November 19, 2015, Plaintiffs, individually and on behalf of other employees
similarly situated, filed the present two-count Collective and Class Action Complaint alleging
violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (the “FLSA”), and the Illinois
Minimum Wage Law, 820 ILCS 105/1 et seq. (the “IMWL”), based on Defendants PNC
Financial Services Group, Inc. and PNC Bank, N.A.’s (collectively, “PNC”) alleged failure to
pay overtime wages. Now, Plaintiffs move for conditional certification and court-authorized
notice under 29 U.S.C. § 216(b). (R. 23.) Plaintiffs present evidence to illustrate that they and
other potential plaintiffs, Assistant Branch Managers (“ABMs”) nationwide, are “similarly
situated.” (Id.) Specifically, Plaintiffs assert that ABMs nationwide regularly conduct nonexempt overtime work and are not appropriately compensated, in violation of the FLSA. PNC
objects. (R. 41.) Instead, argues PNC, the ABMs are properly exempt under the FLSA, and
Plaintiffs fail to present “similarly situated” plaintiffs for conditional certification. (Id.) For the
following reasons, the Court, in its discretion, grants Plaintiffs’ motion for conditional
certification.
ANALYSIS
I.
FLSA Collective Actions
Pursuant to the FLSA, “employees are entitled to overtime pay (i.e., one and one-half
times the regular rate) for any hours worked in excess of forty hours per week, unless they come
within one of the various exemptions set forth in the Act.” Schaefer-LaRose v. Eli Lilly & Co.,
679 F.3d 560, 572 (7th Cir. 2012) (citing 29 U.S.C. §§ 207, 213). To assert such claims, the
FLSA “gives employees the right to bring their FLSA claims through a ‘collective action’ on
behalf of themselves and other ‘similarly situated’ employees.” Alvarez v. City of Chicago, 605
F.3d 445, 448 (7th Cir. 2010) (citing 29 U.S.C. § 216(b) (2006)). Importantly, “[a] collective
action under § 216(b) differs from a class action under Federal Rule of Civil Procedure 23 in that
Rule 23 binds class members unless they opt out, whereas collective action members are bound
under § 216(b) only if they opt in to the action by providing their written consent.” Franks v.
MKM Oil, Inc., No. 10 CV 00013, 2012 WL 3903782, at *9 (N.D. Ill. Sept. 7, 2012) (citing Erin
v. OS Rest. Servs., Inc., 632 F.3d 971, 976 (7th Cir. 2011)).
Although the Seventh Circuit has not established criteria for determining whether
employees are “similarly situated” for “collective action” purposes, “ ‘the majority of courts . . .
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have adopted a two-step process for determining whether an FLSA lawsuit should proceed as a
collective action.’ ” See Franks, 2012 WL 3903782, at *9 (quoting Jirak v. Abbott Labs., Inc.,
566 F. Supp. 2d 845 (N.D. Ill. 2008)); see also Medina v. Happy’s Pizza Franchise, LLC, No. 10
C 3148, 2012 WL 1094353, at *2 (N.D. Ill. Apr. 2, 2012). Step one involves a conditional
certification, and step two, a final certification. Plaintiffs’ burden increases with each, directly
proportional to discovery progress. See Bergman v. Kindred Healthcare, Inc., 949 F. Supp. 2d
852, 855-56 (N.D. Ill. 2013) (“The certification of an FLSA collective action typically proceeds
in two stages. The first stage . . . involves conditionally certifying a class for notice purposes.
There is a low standard of proof. . . . The lenient interpretation standard, however, has sometimes
been supplanted by a more rigorous examination standard if there has been more extensive
discovery[.] . . . The second stage in a collective proceeding comes after any opt-ins have
appeared and discovery has been finished. . . . At that stage . . . the court makes a more rigorous
examination of the facts relating to whether or not the case may appropriately continue as a
collective action.”).
This case is at step one, the conditional certification stage. The purpose of conditional
certification is to determine the size and contour of the group of employees who may become
collective members and whether these potential members are “similarly situated.” See 7B
Charles A. Wright et al., Federal Practice & Procedure § 1807; see also Gomez v. PNC Bank,
Nat’l. Assoc., 306 F.R.D. 156, 173 (N.D. Ill. 2014). Indeed, “[t]he conditional approval process
is a mechanism used by district courts to establish whether potential plaintiffs in the FLSA
collective action should be sent a notice of their eligibility to participate and given the
opportunity to opt in to the collective action.” Ervin, 632 F.3d at 974. This “first step requir[es]
‘a minimal showing that others in the potential class are similarly situated.’ ” Creal v. Grp. O,
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Inc., ___F.Supp.3d ___, No. 13 C 4275, 2016 WL 98566, at *4 (N.D. Ill. Jan. 8, 2016) (citation
omitted); see also Strait v. Belcan Eng’g Grp., Inc., 911 F. Supp. 2d 709, 718 (N.D. Ill. 2012).
Importantly, the parties have yet to engage in any discovery.1 As such, Plaintiffs need only make
“a ‘modest factual showing sufficient to demonstrate that they and potential plaintiffs together
were victims of a common policy or plan that violated the law.’ ” Id. (citation omitted); see also
Steger v. Life Time Fitness, Inc., No. 14-cv-6056, 2016 WL 245899, at *2 (N.D. Ill. Jan. 21,
2016) (quoting Flores v. Lifeway Foods, Inc., 289 F. Supp. 2d 1042, 1045 (N.D. Ill. 2003));
Medina, 2012 WL 1094353, at *2. Affidavits, declarations, other documents, or deposition
testimony can support this “modest factual showing.” See Calverley v. Careerbuilder, LLC, No.
13 C 1967, 2015 WL 4450045, at *1 (N.D. Ill. July 20, 2015). Potential plaintiffs need not be
identically situated, only similarly situated. See Russell v. Illinois Bell Tel. Co., Inc., 721 F.
Supp. 2d 804, 812 (citing cases). Some limitations, however, exist. Put differently, conditional
certification is not automatic. To proceed as a collective action, Plaintiffs must “ ‘demonstrate[]
similarity among the situations of each plaintiff beyond simply claiming that the FLSA has been
violated; an identifiable factual nexus that binds the plaintiffs together as victims of a particular
violation of the overtime laws generally must be present.’ ” Id. at 812 (quoting Vennet v. Am.
Intercont’l Univ. Online, No. 05-4889, 2005 WL 6215171, at *6 (N.D. Ill. Dec. 22, 2005)).
Ultimately, if step one’s “low burden is met, notice may be issued to prospective plaintiffs who
may opt into the action, with discovery to follow.” Creal, 2016 WL 98566, at *4.
Significantly, at this initial stage, “[t]he court does not make merits determinations,
weigh evidence, determine credibility, or specifically consider opposing evidence presented by a
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Because the parties have not engaged in any discovery yet, a number of cases that PNC cites in its Response (R.
37) and Supplemental Authority (R. 42), where the parties had engaged in discovery before certification, are
inapplicable.
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defendant.” Bergman, 949 F. Supp. 2d at 855-56 (citation omitted); see also Larsen v.
Clearchoice Mobility, Inc., No. 11 C 1701, 2011 WL 3047484, at *1 (N.D. Ill. July 25, 2011)
(“[T]he court does not resolve factual disputes or decide substantive issues going to the merits.”);
Nehmelman v. Penn Nat’l Gaming, Inc., 822 F. Supp. 2d 745, 751 (N.D. Ill. 2011) (“[T]he court
does not consider the merits of a plaintiff’s claims, or witness credibility”). Indeed, “[a] district
court has wide discretion to manage collective actions.” Alvarez, 605 F.3d at 449.
II.
Relevant Facts
Plaintiffs present a number of factual bases to illustrate that the proposed plaintiffs,
ABMs across the nation, are “similarly situated.” Taken together, Plaintiffs contend, this
evidence portrays ABMs with similar day-to-day duties, PNC ABM-expectations, non-exempt
overtime work, and lack of compensation in violation of the FLSA. The evidence includes
PNC’s ABM job descriptions, five ABM declarations, and a PNC corporate representative’s
deposition testimony in a related case.
A.
PNC’s ABM Job Posts
Plaintiffs first claim that “PNC’s own ABM uniform job postings from 23 different
locations demonstrate the company’s own view that all ABMs perform essentially the same
duties, no matter where they are located.” (R. 24 at 17.) Specifically, PNC’s ABM job postings
describe the ABM “job profile” as including the following duties:
1.
Supports all aspects of branch, including individual and team,
performance. Builds a high performing team through the attraction,
onboarding, coaching and development of branch team members. Leads
through influence and impacts a broad range of eco-system partners in an
omni channel environment. Drives revenue and loyalty through proactive
interactions with clients.
2.
Manages, coaches and executes a proactive client experience within an
omni channel environment. Provides solutions and advice to improve
client financial well-being. Leads effective problem resolution.
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3.
Manages the branded sales process to proactively achieve sales targets and
customer loyalty. Grows branch revenue through acquisition and shareof-wallet growth of consumer and business households.
4.
Drives the employee experience. Responsible for acquiring and retaining
talent through the coaching and development of employees. Coaches
employees to achieve performance and activity expectations. Assists in
the performance management process for all employees.
5.
Manages operational, human capital, reputational and business risk
through adherence to established policies and procedures. Exercises
sound decision making to identify and mitigate potential risk.
(R. 25-1, Exh. A, at 3-63.) Moreover, as Plaintiffs note, PNC lists this same “Job Profile” for
ABM positions in over twenty PNC branches located in nine states, including Florida, Indiana,
Illinois, Maryland, Michigan, New Jersey, Pennsylvania, Ohio, and Virginia. (R. 24 at 17; R.
25-1, Exh. A, at 3-63.)
B.
ABM Declarations
Additionally, Plaintiffs assert that “Plaintiffs’ [sic] from five different states also attest to
performing the same [ABM] job duties regardless of where they worked.” (R. 24 at 17-18.)
Those ABMs include the two named Plaintiffs and three potential opt-in plaintiffs, including
Rosanne Henkel from PNC’s Boca Raton, Florida branch (R. 25-2 at 2, Exh. B); Dustin Ransom
from PNC’s Huntington, Indiana branch (Id. at 9, Exh. C); Jessica Thomas from PNC’s
Cleveland, Ohio branch (Id. at 16, Exh. D); Dominique Natasha Briggs from PNC’s Chicago,
Illinois branch (Id. at 28, Exh. F); and Samar Hassan from PNC’s Oakton, Virginia branch. (Id.
at 35, Exh. G.)
All five ABMs attest that PNC failed to compensate them for regularly occurring, nonexempt, overtime work. Moreover, each states that he or she observed other ABMs share the
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same experience. Jessica Thomas, from PNC’s Cleveland branch, for example, states the
following:
I frequently worked more than 40 hours per week. Typically, from Monday to
Friday, I worked 10 hours each day, arriving 60 minutes before the branch
opened, and leaving 60 minutes or more after the branch closed. On most days I
had to stay late to perform additional duties, such as []counting teller drawers,
batching the cash advance machine, making campaign calls, performing end-ofday reviews, and other closing procedures. . . .
Working overtime hours to accommodate PNC Bank’s clients and meet PNC
Bank’s business objectives was a routine and necessary part of the Assistant
Branch Manager position. . . . At no time do I recall that PNC Bank
systematically or accurately recorded the hours that I or other Assistant Branch
Managers worked. . . .
As an Assistant Branch Manager, my primary duties were sales, customer service,
and operations. Like other Assistant Branch Managers, my primary duties were
waiting on PNC Bank’s customers and servicing their banking needs. Thus, as an
Assistant Branch Manager I spent the majority of my time on tasks such as
greeting customers, working the teller line, working in the lobby, taking deposits,
making credit payments, opening and closing accounts, processing loan
applications, receiving and making phone calls, answering questions, addressing
overdrafts, maintaining the ATM, counting money, printing reports, proof-reading
forms, and performing clerical work. . . . I spent about 95% of my time each day
performing the job duties [described above].
Based on my observations of Assistant Branch Managers who worked at other
branches, all Assistant Branch Managers performed the same or similar primary
duties. I know this because I and other Assistant Branch Managers participated in
calls and meetings. . . . I also visited or filled-in at other branches in the area and
saw that the duties were the same. Like me, other Assistant Branch Managers that
I knew regularly worked more than forty hours each workweek. . . . Other
Assistant Branch Managers with whom I interacted were paid similarly to me and
also did not receiver overtime pay.
(R. 25-2 at 17, 20, Exh. D.) Each of Plaintiffs’ five ABM declarations include nearly identical
statements regarding their duties, non-exempt overtime work, lack of compensation, and
familiarity with other ABMs’ similar circumstances. (Id., Exhs. B-D, F-G.)
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C.
PNC’s Corporate Representative Deposition in Moore v. PNC Bank, N.A.
Finally, Plaintiffs present Ms. Vicki Henn’s deposition from Moore v. PNC Bank, N.A,
No. 12-1135, 2013 WL 2338251 (W.D. Penn. May 29, 2013) whom Plaintiffs argue was PNC’s
“corporate representative to testify on numerous issues, including the duties, hours[,] and
classification of ABMs.” (R. 24 at 8, n.2.) Plaintiffs argue that “Ms. Henn’s testimony is further
evidence that the ABM position is homogenous and that there is one primary duty of the job
title[,] . . . support[ing] conditional certification.” (R. 41 at 16.)
Specifically, Ms. Henn answered “[y]es” when asked whether “the jobs[,] duties[,] and
functions of the ABM position [are] the same throughout the company at every branch[.]” (R.
25-2 at 26, Exh. E.) Ms. Henn further confirmed that PNC does not pay ABMs across the nation
overtime, answering “[y]es” when asked whether “PNC has a business practice of uniformly
classifying all of its ABMs overtime-exempt regardless of the branch that the ABM is assigned
to[.]” (Id.)
III.
Proposed Plaintiffs Are “Similarly Situated”
Plaintiffs successfully make a “modest factual showing” that they and their proposed
potential plaintiffs are “similarly situated.” Creal, 2016 WL 98566, at *4 (citation omitted).
Indeed, Plaintiffs make “a minimal showing” that they and ABMs nationwide allegedly perform
nearly identical duties under similar PNC guidelines, regularly work more than forty hours a
week, and fail to receive appropriate compensation for non-exempt work, in violation of the
FLSA. Id. at *4. PNC’s ABM job descriptions for over twenty PNC branches located across
nine states, for example, each recite the same ABM “job profile” verbatim. These posts factually
support the notion that ABMs nationwide perform similar duties and responsibilities and operate
under similar PNC objectives. Moreover, five former ABMs spanning five different PNC
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branches and states state that they, and other ABMs across the nation, regularly worked more
than forty hours a week, performed similar non-exempt work, and were not compensated
appropriately. These declarations not only support that ABMs’ duties and expectations are
uniform, but also that they allegedly “were victims of a common policy or plan that violated” the
FLSA. Id. at *4. Finally, Ms. Henn adds a national element to Plaintiffs’ evidence.
Specifically, she testified that 1) ABM duties are the same throughout every PNC branch
nationwide, 2) PNC’s ABM-expectations are uniform across every branch, and 3) PNC did not
pay any ABMs overtime, instead categorizing the position as entirely “exempt.” Taken together,
Plaintiffs’ evidence presents a “modest factual showing” that the proposed plaintiffs are
“similarly situated.” Thus, the Court grants Plaintiffs’ step one, conditional certification motion.
PNC’s counterarguments are unpersuasive. PNC’s primary objection is that “ABMs at
PNC are properly classified as exempt employees under the administrative, executive, and/or
combination exemptions.” (R. 37 at 12.) The FLSA exemption states, in relevant part, that
“[t]he provisions of section 206 . . . and section 207 of this title shall not apply with respect to
any employee employed in a bona fide executive, administrative, or professional capacity
(including any employee employed in the capacity of academic administrative personnel or
teacher in elementary or secondary schools), or in the capacity of outside salesman[.]” 29 U.S.C.
§ 213(a)(1). Given this exemption, PNC concludes that “Plaintiffs were not ‘victims of a
common policy or plan’ to classify over 1,300 ABMs nationwide as exempt while requiring
them to perform primarily non-exempt duties.” (R. 37 at 18.) PNC bears the burden of
establishing this exemption. Notably, however, at step one, “the court does not resolve factual
disputes or decide substantive issues going to the merits.” Larsen, 2011 WL 3047484, at *1.
PNC’s attempt to classify ABMs’ primary responsibilities as “exempt,” thereby properly left
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uncompensated under the FLSA, is a premature merit-based argument. Indeed, separating and
classifying each ABM duty as either exempt or non-exempt is an inappropriate fact-intensive
analysis better accomplished with the aid of discovery. Schaefer-LaRose, 679 F.3d at 572
(determining the application of this exemption “requires a thorough, fact-intensive analysis of
the employee’s employment duties and responsibilities”) (citing Roe-Midgett v. CC Servs., Inc.,
512 F.3d 865, 870 (7th Cir. 2008)). Instead, at the pre-discovery, step one conditional
certification stage, it is within the Court’s wide discretion to determine whether Plaintiffs hurdle
their minimal burden to show that the proposed plaintiffs are similarly situated without
“consider[ing] the merits of a plaintiff’s claims[.]” Nehmelman, 822 F. Supp. 2d at 751. Given
the evidence described above, Plaintiffs have.
Further, PNC’s reliance on Moore is misapplied. Specifically, PNC counters that “[t]his
is the second attempt to drum up a nationwide collective action regarding PNC’s ABMs. The
first attempt failed in May 2013 when a Pennsylvania district court refused to conditionally
certify the same nationwide ABM collective action[,] . . . and the same result is warranted here.”
(R. 37 at 6, citing Moore, 2013 WL 2338251.) In Moore, however, the judge denied the
plaintiff’s attempt to conditionally certify a nationwide PNC ABM class under FLSA because
the plaintiff “neither filed any supporting declarations nor included deposition testimony of any
other current or former ABMs to bolster her claim.” Moore, 2013 WL 2338251, at *6. “Without
more,” the judge concluded, “Plaintiff Moore fail[ed] to meet her modest burden.” Id. Here,
Plaintiffs rely on much more. Indeed, as described in more detail above, Plaintiffs include in
their factual nexus PNC’s own ABM job descriptions for over twenty branches across nine
states, five ABM declarations from five separate PNC branches in five different states, and a
PNC corporate representative’s relevant deposition from Moore. PNC additionally argues,
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relying again, in part, on Moore, that “[c]lassifying a group of employees as exempt cannot alone
be the glue that binds an FLSA action.” (R. 37 at 18.) Again, however, Plaintiffs’ evidence
includes more than just PNC’s exempt classification for ABMs. Instead, Plaintiffs provide
factual support illustrating, in relevant part, alleged ABM non-exempt overtime work and a lack
of compensation in violation of the FLSA spanning a number of PNC branches and states.
PNC’s objections to each piece of evidence meet the same fate. First, PNC claims that its
ABM job postings “show the opposite of Plaintiff’s claim” and instead illustrate that “the ABM
job descriptions applicable to the Plaintiffs and opt-in Plaintiffs are crystal clear that the primary
duties of the ABM position are exempt management and administrative duties.” (R. 37 at 15.)
This argument, however, is misplaced. The job posts are not meant to prove Plaintiffs’
substantive claim. Instead, they serve Plaintiffs’ step one burden by simply illustrating that
PNC’s ABMs across a number of branches and states share the same duties and operate under
the same objectives. Additionally, as stated above, the Court, at this stage, does not “resolve
factual disputes or decide substantive issues going to the merits,” and the Court cannot conclude
as a matter of law that the job descriptions fall squarely within the exemption. Larsen, 2011 WL
3047484, at *1. Moreover, PNC’s argument that its ABMs share the same primary managerial
responsibilities, at the very least, cuts against its contention that they are not similarly situated.
Second, PNC argues that Plaintiffs’ declarations are “cookie cutter” and are based on
testimony from Plaintiffs who “worked as ABMs for very short periods of time almost three
years ago.” (R. 37 at 11, 16.) The Court interprets PNC’s allegations as attacks on the
declarants’ credibility. The Court, however, does not assess “witness credibility” at this stage.
Nehmelman, 822 F. Supp. 2d at 751. Instead, characterizing Plaintiffs’ declarations as “cookie
cutter” lends credence to Plaintiffs’ claim that the ABMs are similarly situated.
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In addition, PNC presents declarations from other ABMs to support their claims that
there are ABMs “unlike the Plaintiffs and opt-in Plaintiffs” and that “ABMs in fact do perform
exempt essential functions.” (R. 37 at 18.) This is ineffective for two reasons. First, as noted
earlier, “[t]he court,” at this step, “does not . . . specifically consider opposing evidence
presented by a defendant.” Bergman, 949 F. Supp. 2d at 855-56 (citation omitted). Second,
even if the Court were to consider PNC’s opposing declarations, “whether . . . discrepancies
[between potential class members] will become important down the road does not affect the
current question of conditional certification.” Salmans v. Byron Udell & Assocs., No. 12 C 3452,
2013 WL 707992, at *4 (N.D Ill. Feb. 26, 2013) (citing Smallwood v. Illinois Bell Tel. Co., 710
F. Supp. 2d 746, 751 (N.D. Ill. 2010)). Indeed, “the rigorous comparison of day-to-day job
responsibilities urged by defendants is inappropriate at the conditional certification stage.”
Petersen v. Marsh USA, Inc., No. 10-1506, 2010 WL 5423734, at *5 (N.D. Ill. Dec. 23, 2010)
(citing Smallwood, 710 F. Supp. 2d at 751). As a result, PNC’s declarations are futile in the
Court’s step one analysis.
Finally, PNC asserts that “Ms. Henn’s complete testimony refutes the claim that PNC
ABMs perform primarily non-exempt work.” (R. 37 at 16.) Again, this is a merit-based defense,
and, again, it fails. Further, PNC states that “[t]his testimony was not sufficient to warrant
conditional certification in Moore, and it is not sufficient to warrant conditional certification in
this case.” (R. 37 at 7.) As described above, however, Plaintiffs do not simply rely on Ms.
Henn’s testimony. Rather, considering Plaintiffs’ evidence in its entirety, Plaintiffs have met
their minimal step one burden.
As a result, Plaintiffs meet their burden. Plaintiffs successfully provide modest factual
support showing that PNC ABMs nationwide are similarly situated pursuant to the FLSA. See
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Tamas v. Family Video Movie Club, Inc., No. 11 C 1024, 2013 WL 4080649, at *3 (holding that
the plaintiff’s step one burden was met where “the claimants provide[d] evidence that they were
subject to the same policy that misclassified them as exempt employees”); see also Salmans,
2013 WL 707992, at *2 (“All that is necessary at this stage is for the plaintiffs to establish that
the class was subject to a common policy that allegedly violates the overtime provisions of the
FLSA[.]”) (emphasis in original). Thus, the Court, in its wide discretion, grants Plaintiffs’ prediscovery motion for step one, conditional certification.
CONCLUSION
For the foregoing reasons, the Court, in its discretion, grants Plaintiffs’ pre-discovery
motion for conditional certification pursuant to the FLSA.
DATED: March 16, 2016
ENTERED
______________________________
AMY J. ST. EVE
United States District Court Judge
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