Muir et al v. Guardian Heating and Cooling Services, Inc. et al
Filing
24
MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 3/13/2017:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHAEL MUIR and BRADLEY
STOCK, on Behalf of
Themselves and All Others
Similarly Situated,
Case No. 16 C 9755
Plaintiffs,
Judge Harry D. Leinenweber
v.
GUARDIAN HEATING AND COOLING
SERVICS, INC., ROBERT LANGE,
and ANDREA LANGE,
Defendants.
MEMORANDUM OPINION AND ORDER
Before
the
Court
are
Plaintiffs’
Motion
for
Conditional
Class Certification, Disclosure of Potential Opt-In Plaintiffs’
Contact Information, and Court-Approved Notice [ECF No. 10] (the
“Motion”).
For the reasons stated herein, the Motion is granted in
part.
Office-staff employees of Guardian are excluded from the
collective because Plaintiffs have not made a modest factual
showing that they were victims of the challenged policies.
The
Court directs Defendants to provide Plaintiffs, by no later than
March 27, 2017, the names and the last known addresses, phone
numbers,
email
addresses,
potential opt-ins.
and
dates
of
employment
for
all
The Court authorizes Plaintiffs to transmit
the notice and consent form to all potential members of the
collective by U.S. mail, email, and a posting in an employeeonly area of Guardian’s facility where notices are typically
displayed.
The Court denies Plaintiffs’ request for notice via
website and text message.
The opt-in period shall be sixty (60)
days from the date notice is mailed and posted.
I.
BACKGROUND
Plaintiffs Michael Muir and Bradley Stock are former hourly
employees
of
(“Guardian”).
Guardian
of
heating
(ECF
been
No.
equipment
Cooling
Services,
Inc.
and
air
conditioners
in
the
Chicago,
Since January 1, 2008, Defendant Robert Lange
Guardian’s
13
and
Guardian is a provider, installer, and servicer
Illinois area.
has
Heating
sole
(“Defs.’
shareholder,
Mem.”)
Guardian’s office manager.
at
officer,
2.)
His
and
wife,
director.
Andrea,
(Defs.’ Mem., Ex. 10 ¶ 3.)
is
Guardian
employs approximately 10 to 15 full-time and part-time employees
across
three
service
Office
job
categories:
representatives.
staff
and
office
(Id.;
installers
ECF
staff,
No.
commence
1
installers,
(“Compl.”)
their
workdays
and
¶
42.)
at
the
Guardian facility, located at 3916 North Central Park Avenue in
Chicago.
Installers then typically depart the Guardian facility
in a company service vehicle to make service calls and visit job
sites.
So too service representatives, although they may elect
- 2 -
instead to drive a company vehicle from their place of residence
to their first job of the day.
(Defs.’ Mem. at 2, 9.)
All
Guardian employees operate on the honor system when turning in
their
time.
(Id.
at
2.)
Both
Muir
and
Stock
are
former
Guardian service representatives.
To
remedy
practices
that
allegedly
undercompensate
employees for overtime work, Plaintiffs filed an Individual and
Collective Action Complaint against Guardian, Robert Lange, and
Andrea Lange under the Fair Labor Standards Act (“FLSA”), 29
U.S.C. § 201, et seq.; the Illinois Minimum Wage Law, 820 Ill.
Comp. Stat. 105/1, et seq.; and the Illinois Wage Payment and
Collection Act, 820 Ill. Comp. Stat. 115/1, et seq. (Muir also
asserts an individual retaliation claim based on his raising
FLSA wage claims with Defendant Robert Lange.)
Plaintiffs
class
as
a
ask
the
collective
Court
action
to
certify
under
the
conditionally
FLSA,
and
this
require
Defendants to produce the names of all potential opt-ins and
accommodate
Court-supervised
notice.
Plaintiffs
define
putative collective as follows:
All employees of Defendant failed to pay overtime
wages based on the following circumstances[:] 1)
Employees who[] worked through lunch; 2) Employees not
paid for overtime work time at the end of the work
day[;] 3) Employees not paid for overtime work time
for
time
spent
on
the
phone
conducting
phone
consultations off-hours[;] 4) Employees not paid for
- 3 -
the
overtime work time for time spent commuting to job
sites.
(Pls.’ Mem. at 2.)
The proposed collective includes within its
ambit
employed
all
persons
by
Guardian
at
any
time
from
October 15, 2013 through the date on which final judgment is
entered in this action and who timely file (or have already
filed) a written consent under 29 U.S.C. § 216(b).
II.
(See, id.)
LEGAL STANDARD
Under the FLSA, plaintiffs may bring a collective action on
behalf of themselves “and other employees similarly situated” to
recover unpaid overtime compensation.
participate,
an
individual
“must
29 U.S.C. § 216(b).
affirmatively
opt-in
to
To
the
suit by filing a written consent with the court.”
Alvarez v.
City of Chicago, 605 F.3d 445, 448 (7th Cir. 2010).
This opt-in
requirement replaces the procedure for ordinary class actions,
which falls under FED. R. CIV. P. 23.
See, Acevedo v. Ace Coffee
Bar, Inc., 248 F.R.D. 550, 553 (N.D. Ill. 2008).
Because
established
neither
a
Congress
detailed
nor
the
framework
Seventh
Circuit
governing
has
conditional
certification or notice, “district courts have wide discretion
to
manage
Corp.,
No.
collective
12
C
actions.”
1899,
2013
WL
Sylvester
5433593,
v.
at
Wintrust
*2
Sept. 30, 2013) (internal quotation marks omitted).
(N.D.
Fin.
Ill.
As such,
courts in this district have fashioned a two-step process for
- 4 -
evaluating
conditional
certification.
At
the
first
stage,
plaintiffs must show that there are similarly situated employees
who are potential claimants.
Russell v. Ill. Bell Tel. Co., 575
F.Supp.2d 930, 933 (N.D. Ill. 2008); see, Petersen v. Marsh USA,
Inc., No. 10 C 1506, 2010 WL 5423734, at *2 (N.D. Ill. Dec. 23,
2010).
To meet this burden, plaintiffs must 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.”
Terry v. TMX Fin. LLC, No. 13 C
6156, 2014 WL2066713, at *2 (N.D. Ill. May 19, 2014) (citing
Russell, 575 F.Supp.2d at 933).
conclusive
support,
but
they
“Plaintiffs need not provide
must
provide
an
affidavit,
declaration, or other support beyond allegations in order to
make a minimal showing of other similarly situated employees
subjected to a common policy.”
Molina v. First Line Sol’ns LLC,
566 F.Supp.2d 770, 786 (N.D. Ill. 2007).
the
record
affidavits.”
before
it,
including
the
The Court “evaluates
defendant’s
oppositional
Rottman v. Old Second Bancorp, Inc., 735 F.Supp.2d
988, 990 (N.D. Ill. 2010).
(The second stage, in which the
court evaluates whether “sufficient similarity [exists] between
the named and opt-in plaintiffs to allow the matter to proceed
to
trial
on
a
collective
basis,”
- 5 -
occurs
after
discovery
and
completion of the opt-in process.
Russell, 575 F.Supp.2d at
933; see, Sylvester, 2013 WL 5433593 at *3.)
Upon a showing that other putative opt-ins are similarly
situated, the Court will conditionally certify the action and
may
allow
employees.
notice
of
the
case
to
the
similarly
situated
Hudgins v. Total Quality Logistics, LLC, No. 16 C
7331, 2016 WL 7426135, at *3 (N.D. Ill. Dec. 23, 2016) (citation
omitted).
Whether a proposed form of notice is adequate and
appropriate depends on potential opt-ins “receiving accurate and
timely notice concerning the pendency of the collective action,
so
that
they
participate.”
can
make
informed
decisions
about
whether
to
Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165,
170 (1989).
III.
DISCUSSION
Plaintiffs argue that all putative notice recipients were
subjected
to
the
policies
and
procedures
indicated
in
the
proposed collective definition and described in more detail in
Plaintiffs’
Complaint
Complaint,
for
and
Plaintiff
example,
Muir’s
alleges
affidavits.
that
The
“Defendants[‘]
agents . . . was [sic] informed that sometimes employees in the
field cannot take lunch, thus the time had to be paid.”
(ECF
No. 1 (“Compl.”) ¶ 24.)
In his first affidavit, Muir asserts
that
10
many
of
Guardian’s
to
- 6 -
15
employees
“are
similarly
situated to me as they worked through lunch without pay, were
not paid for call times on off-hours, not paid for all travel
time.” (Pl.’s Mem., Ex. 1, ¶ 6.)
work
time
was
overtime
work,
Muir avers that this unpaid
that
all
similarly
situated
employees of Guardian “were paid on an hourly basis, just like
me,” and that he is aware of no installer or service employee
who is paid a salary. (Id. ¶¶ 7-8.)
following
Guardian
employees
as
He specifically names the
similarly
situated:
Javier
Lopez, Adam Haynes, and “Kevin” (whose last name he does not
know). (Id. ¶ 21.)
Defendants, on the other hand, argue against certification
on a number of grounds.
members
of
Plaintiffs’
First, Defendants contend that the
proposed
collective
are
not
similarly
situated because Guardian installers, office staff, and service
representatives were subjected to different sets of policies.
(Defs.’ Mem. at 8-9.)
Second, Defendants claim that the uses of
company vehicles at issue here fall within the Portal-to-Portal
Act (see, id. at 9-10), which exempts certain activities from
the
pay
mandates
preliminary
to
or
of
the
FLSA,
postliminary
including
to”
those
principal
“which
are
activities
and
occur “either prior to the time on any particular workday at
which such employee commences, or subsequent to the time on any
particular workday at which he ceases, such principal activity.”
- 7 -
29 U.S.C. § 254(a)(2).
Third, Defendants claim that Guardian
sufficiently
an
compensates
“on
call”
employee
for
off-hours
time spent on the phone by paying her an additional $50 per
week. (Defs.’ Mem. at 10-11.)
Last, they stress that Muir was a
“rogue employee” who “violated every company rule.” (Id. at 6.)
Defendants submitted a series of affidavits from several
current
(and
one
former)
Defendants
Robert
affidavits
variously
employee’s
overtime
and
Guardian
Andrea
state
and
employees
Lange.
that
describe
As
Guardian
a
lunch
as
well
as
relevant,
has
policy
from
these
paid
each
whereby
30
minutes of daily time is deducted for lunch (unless an employee
receives prior approval and indicates on her time chart that no
lunch was taken).
In particular, former service representative
Javier Lopez, one of the three individuals whom Muir names as
similarly situated, avers that Guardian instructed employees to
take a lunch break, that employees were to indicate the same on
their time cards, and that he was paid for all the days and
hours that he worked (including proper overtime pay).
Mem., Ex. 4, ¶¶ 4-6.)
(Defs.’
Elizabeth Rzymowski, a current Guardian
office employee in charge of payroll, states that Muir was paid
all the overtime indicated on his time cards and that Muir was
deducted one-half hour for lunch when he did not receive company
approval to work through lunch or when his claims of working
- 8 -
through lunch were “not verifiable.” (Id., Ex. 3, ¶¶ 7-8.)
In
addition, Defendant Andrea Lange submits in her affidavit that,
based on review of company vehicle GPS records, Muir used a
Guardian company vehicle for personal matters, did not properly
account for his time on several occasions, and may have taken at
least partial lunch breaks on days when he indicated “No Lunch”
on his time card. (See, generally, id., Ex. 10.)
With respect
to Plaintiff Stock, Defendants claim that he was paid for time
or overtime whenever he would work through a lunch period. (Id.
at 4-5.)
A.
Whether
Similarly Situated
certification
of
the
requested
collective
is
appropriate turns on the extent to which all putative opt-in
claimants
were
similarly
alleged to be unlawful.
situated
victims
of
common
policies
Courts find plaintiffs to be similarly
situated “despite some variations in their job duties” when it
is clear that they have the “same essential responsibilit[ies].”
Jirak v. Abbot Labs., 566 F.Supp.2d 845, 848 (N.D. Ill. 2008).
What is more, plaintiffs can be similarly situated for purposes
of the FLSA even though there are distinctions in their job
titles, functions, or pay.
See, id. at 849 (citation omitted).
Concerns regarding a lack of common facts among potential class
members
and
the
need
for
individualized
- 9 -
inquiries
should
be
raised at step two, not step one.
Health
Care
Network
&
See, e.g., Lukas v. Advocate
Subsidiaries,
No.
14
C
2740,
2014
WL
4783028, at *3 (N.D. Ill. Sept. 24, 2014) (citations omitted).
Defendants enjoy “the opportunity to argue that individualized
determinations
predominate
certification process.”
at
the
second
step
of
the
Anyere v. Wells Fargo, Co., Inc., 09 C
2769, 2010 WL 1542180, at *3 (N.D. Ill. Apr. 12, 2010) (citation
omitted).
A corollary of the two-step process is that credibility
determinations
evidence
of
are
improper
Defendants’
at
the
first
policy
may
not
Plaintiffs’ contrary evidence.”
Inc.,
2012
WL
6055596
(N.D.
stage,
be
“and
accepted
the
over
Jankuski v. Health Consultants,
Ill.
Dec.
5,
2012);
see
also,
Russell, 575 F.Supp.2d at 935 (“[T]he mere fact that a company
has
a
written
overtime
policy
does
not
defeat
conditional
certification when a plaintiff provides countervailing evidence
of a common policy of not paying for overtime.”).
This assumes
particular importance where the plaintiffs claim that a de jure
employer policy was de facto ignored or enforced on different
terms.
See, DeMarco v. Northwestern Memorial Healthcare, No. 10
C 397, 2011 WL 3510905, at *3 (N.D. Ill. Aug. 10, 2011).
- 10 -
1.
Whereas
office
staff
Lunch Breaks
take
a
designated
30-minute
unpaid
lunch period, installers and service representatives – because
they are often at job sites or in transit between them – may
take their lunch at any time during the day.
Ex. 1 ¶ 13.)
(Id. at 2-3 &
Defendants maintain that installers and service
representatives
who
receive approval.
wish
to
work
through
lunch
must
first
Muir’s first affidavit states that Guardian
consistently failed to pay him and other employees when they
worked through lunch and that he repeatedly confronted Robert
Lange about this issue.
24.)
(ECF No. 5 (“Pls.’ Mem.”), Ex. 1 ¶¶ 23-
Muir further avers that he was often too busy to take
lunch breaks, that marking “No Lunch” on timecards was futile
because of Defendants’ de facto unwillingness to suspend the
lunch deduction, and that he was deducted 30 minutes for lunch
even when he marked “No Lunch” on his timecard.
(See, e.g., ECF
No. 15 (“Pl.’s Reply”), Ex. 3 ¶¶ 14-46.)
These
allegation
statements
in
of
individuals
other
Muir’s
affidavits,
coupled
with
his
similarly
situated
and
his
specific naming of at least Adam Haynes and “Kevin,” constitute
the
requisite
modest
factual
showing
collective action certification.
3510905
at
*3
(grounding
the
first
step
of
See, e.g., DeMarco, 2011 WL
conditional
- 11 -
at
FLSA
certification
in
evidence that nurses were frequently interrupted during their
30-minute meal periods with work-related tasks, that pressing
the “cancel lunch” button was futile because it just “wasn’t
done,” and that the named plaintiff made her managers aware of
the problem).
In addition, Plaintiffs sufficiently allege that
Guardian’s lunch policy is unlawful.
All time which employers
permit to be worked must be compensated.
Regulations
requested
reason
is
implementing
but
suffered
the
and
immaterial.
law
provide
permitted
The
29 U.S.C. §§ 206, 207.
employer
is
that
work
knows
“[w]ork
not
time. . . . The
or
has
reason
to
believe that [an employee] is continuing to work and the time is
working
time.”
29
C.F.R.
§
785.11.
It
is
the
duty
of
management to see to it that work it does not want performed is
not, in fact, performed.
See, Kellar v. Summit Seating Inc.,
664 F.3d 169, 177 (7th Cir. 2011).
Defendants protest certification by insisting that “neither
the installers nor the service representatives are instructed to
work during their lunch period.” (Defs.’ Mem., Ex. 1 ¶ 15.)
They
adduce
further
evidence
that
employees
wishing
to
work
through lunch can seek prior approval and that Muir himself was
appropriately paid.
evidence
cuts
the
(See, e.g., id., Ex. 3 ¶¶ 7-8.)
other
way,
particularly
in
evidence in his second affidavit (explored infra).
- 12 -
But Muir’s
light
of
the
At the very
least, the evidence points to a credibility dispute that the
Court cannot resolve at this stage.
Similarly, that Defendants
may have paid some overtime, or paid overtime to those employees
submitting
affidavits,
does
“not
negate
the
declarations
in
which [Muir] indicate[s] [he has] not been paid all the overtime
[he is] owed.”
Pieksma v. Bridgeview Bank Mortg. Co., LLC, 2016
WL 7409909, at *6 (N.D. Ill. Dec. 22, 2016) (citing Gomez v. PNC
Bank, Nat’l Assn., 306 F.R.D. 156, 174 n.4 (N.D. Ill. 2014)).
Plaintiffs have adduced evidence sufficient at the first stage
of the § 216(b) process to demonstrate the existence of Guardian
employees similarly situated with respect to meal break-related
overtime claims.
2.
Plaintiffs
Guardian’s Transit Policy
challenge
a
policy
under
which
Guardian
wrongfully “punches out” employees “upon the last job of the day
and/or upon starting of the service vehicle at the end of the
day, but before the Plaintiff and Collective have completed work
and/or Plaintiffs and Collective travel from the work site.”
(Pls.’ Mem. at 3.)
Neither the briefs nor affidavits clarify
how this policy is independent of the fourth challenged Guardian
policy:
(Id.)
failure to pay “for time spent commuting to job sites.”
Indeed, Defendants treated Plaintiffs’ challenge to these
two policies under one heading, “The Use of Company Vehicle”
- 13 -
(Defs.’ Mem. at 9-10), because they both implicate Guardian’s
transit
cars.
rules
with
respect
to
its
employees
who
use
company
For purposes of Plaintiffs’ Motion, the Court thus treats
them
as
two
facets
of
Guardian’s
larger
policy
governing
compensable transit time.
To stave off a similarly situated finding, Defendants claim
that their work policies for service representatives who, like
Muir,
opt
residences
to
drive
differ
a
from
company
those
vehicle
for
to
and
installers
and
from
their
for
those
service representatives who report to the Guardian facility in
the morning for their daily driver.
Defendants claim that a
representative who opts to drive a company vehicle to and from
her residence is paid from the time of arrival on the first job
site of the day until departure from the last job site.
On the
other hand, those who begin and end their day at the Guardian
facility are paid for travel time spent in a Guardian service
vehicle traveling to and from job sites.
However,
Plaintiffs’
evidence
(Defs.’ Mem. at 9-10.)
either
conflicts
with
Defendants’ description or suggests that such a policy might
nonetheless produce unlawful payment practices.
Plaintiffs
describe
the
transit
policy
as
In particular,
one
under
which
Guardian “punches out” employees “upon starting of the service
vehicle at the end of the day, but before the Plaintiff[s] and
- 14 -
Collective have completed work.”
3 & Ex. 1 ¶¶ 12, 18, 28.)
(Compl. ¶¶ 1-2; Pls.’ Mem. at
If Guardian clocks out service
representatives who, like Muir, elect(ed) to drive a company car
to
and
from
their
residence,
then
the
policy
Muir
describes
would at least be consistent with Defendants’ characterization.
But it might nonetheless undercompensate overtime work for these
employees.
installers
If, on the other hand, Guardian does this even for
and
service
representatives
who
do
not
drive
a
service vehicle home, as Plaintiffs’ evidence suggests, then it
contradicts Guardian’s asserted policy.
Thus, the record is
unclear on the issue of how widely this “punching out” practice
sweeps,
and
conditioning
a
similarly
situated
finding
on
distinctions in company car privileges (as Defendants seem to
desire)
would
require
the
Court
to
make
impermissible
credibility determinations.
But that is not all.
that
at
least
some
of
his
Muir’s second affidavit establishes
alleged
overtime
losses
were
not
purely a function of Guardian’s challenged lunch policy or “on
call”
policy
(explored
infra).
During
the
pay
period
of
September 6 through 12, 2016, Muir reported a total of 50.75
hours worked but was paid for only 44.5 hours of work – that is,
he was “shorted” 6.25 hours of overtime pay.
Muir points out
that six lunch deductions of 30 minutes each would still have
- 15 -
only yielded 3 hours of pay deductions, not 6.25.
(“Pl.’s Reply”), Ex. 3, ¶¶ 9-20.)
(ECF No. 15
During the subsequent pay
period of September 13 through 19, 2016, Muir reported a total
of 47.75 hours on his time sheets but was paid for only 41.5
hours – again, he was “shorted” 6.25 hours of overtime pay.
(On
one of the time sheets during this period, Muir did in fact
write “No Lunch.”)
Again, even a 30-minute deduction for lunch
on each and every day cannot explain the discrepancy in his
overtime pay. (Id. ¶¶ 21-36.)
discrepancies
occurred
in
And, because Muir’s cited pay
subsequent
weeks,
Defendants’
own
description of the “on call” policy means that it alone cannot
account for the missing overtime hours.
Nor does the record permit an inference that Muir’s pay was
docked as an adjustment for his alleged propensity to engage in
personal errands on company time in a company vehicle.
For
example, Defendant Andrea Lange states in her affidavit that the
GPS system on company vehicles “is seldom used during the day
unless
we
are
looking
to
see
who
is
the
closest
service
representative to a next service need” but that, “as a result of
this lawsuit, I began to review the GPS locations of Michael
Muir as well as his time sheets and his work sheets.”
Mem.,
Ex.
10,
¶¶
8-9.)
If
Guardian
was
(Defs.’
contemporaneously
unaware of issues with Muir’s timekeeping, then the gripes to
- 16 -
which Defendants devote considerable ink cannot explain why his
pay was docked as recounted in his second affidavit.
logical
explanation,
then,
is
that
Guardian’s
The most
travel
policy
accounts for Muir’s missing hours – because, for example, he
made a habit of starting his company vehicle before completing
all work on his last job site of the day.
Defendants
principally
justify
Guardian’s
transit
policy
based on the Portal-to-Portal Act, arguing that it exempts from
the FLSA’s overtime mandate travel and commuting activities akin
to those at issue.
issue
at
the
But that sacrifices the similarly situated
altar
of
this
case’s
ultimate
merits.
The
application of an FLSA exemption, such as the one Defendants
claim under the Portal-to-Portal Act, is an affirmative defense
on which Defendants carry the burden of proof.
See, Corning
Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974); Barefield
v. Village of Winnetka, 81 F.3d 704, 710 (7th Cir. 1996).
Just
as daily travel such as Muir’s may well fall within the Portalto-Portal Act, so too may certain activities on job sites that
occur
after
a
Guardian
service vehicle.
stage
is
too
employee
turns
the
ignition
on
her
But the record before the Court at this early
limited
to
make
sweeping
Guardian employees’ principal activities.
determinations
about
See, e.g., Alexander
v. Caraustar Indus., Inc., No. 11 C 1007, 2011 WL 2550830, at *2
- 17 -
(N.D. Ill. June 27, 2011) (granting conditional certification
over
the
defendants’
argument
that
time
spent
donning
and
removing protective gear was not compensable because the gear
was not integral to the plaintiffs’ principal activities).
As
is often the case, “[d]eciding whether the Portal-to-Portal Act
applies . . . is premature since the Court will not make such
merit
determinations
until
completed by the parties.”
extensive
discovery
has
been
Creal v. Group O, Inc., No. 13 C
4275, 2014 WL 1909481, at *3 (N.D. Ill. May 13, 2014) (citation
omitted).
Rather, all that is required at this stage of the
proceedings “is for the plaintiffs to establish that the class
was
subject
to
a
common
policy
that
overtime provisions of the FLSA.”
allegedly
violates
the
Salmans v. Byron Udell &
Asscs., Inc., No. 12 C 3542, 2013 WL 707992, at *5 (N.D. Ill.
Feb. 26, 2013) (emphasis in original) (citations omitted).
Accordingly, Plaintiffs have adduced evidence sufficient at
the
first
stage
of
the
§
216(b)
process
to
show
similarly
situated Guardian employees who possess overtime claims arising
from Guardian’s transit policy.
3.
Every
sixth
week,
“On Call” Phone Time
according
to
Defendants,
a
service
representative is “on call,” meaning that she must answer her
company phone between the hours of 5:00 p.m. and 11:00 p.m. for
- 18 -
emergency
service
employee
receives
jobs.
an
(Defs.’
assignment
Mem.
at
while
3,
10.)
call,”
“on
If
she
the
is
compensated from the time of departure to the job from her home
until her return back home. (Id. at 11.)
associated
time
spent
on
the
As compensation for
phone,
each
“on
call”
representative is paid $50 for their designated week. (Id. at
10.)
The cited portion of Defendant Robert Lange’s affidavit
does not define the extent of its application and only mentions
this policy as applied to Muir. (See, id. at 10 (citing Ex. 1
¶¶ 19-20).)
from
the
Defendants aver that Muir was paid for overtime
time
completing
he
an
“on
left
home
call”
until
his
(Id.
at
job.
return
after
Their
3.)
home
brief
acknowledges that the “on call” policy applies universally to
service
representatives,
but
installers or office personnel.
Plaintiff
Muir’s
denies
that
it
applies
to
(Id. at 11.)
affidavit,
on
the
other
hand,
avers
broader application of Guardian’s compensation policy for offhours phone consulting.
He first acknowledges that an “on call”
employee’s compensation only begins “when the employee takes the
car on a service-call.”
states
that,
besides
(Pls.’ Mem., Ex. 1 ¶ 26.)
“hourly
Service
Techs,”
However, he
“[m]any
other
employees are forced to take a company phone home on off hours”
and that Guardian’s on call policy “is applied to all employees
- 19 -
taking the phone home.” (Id. ¶¶ 25-27.)
Plaintiffs’ evidence
therefore suggests that Guardian’s “on call” policy is applied
not just to service representatives but, most logically, also to
installers,
Guardian
Muir’s
who
share
company
sworn
cars
similar
to
statements,
job
visit
duties
customers’
of
juxtaposed
with
traveling
heating/AC
the
in
units.
unsupported
and
conclusory statement in Defendants’ brief, amount to a modest
showing
that
Guardian
installers
are
similarly
situated
to
service representatives for purposes of the “on call” policy.
Irrespective
of
the
scope
of
the
“on
call”
policy,
Defendants again content themselves with lodging a pure merits
objection to conditional certification.
They claim that the $50
Guardian
pays
constitutes
per
week
to
the
“on
call”
underpayment
of
overtime
wages
multiple hours per week on the telephone.
11.)
individual
if
she
only
spends
(Defs.’ Mem. at 10-
In fact, Defendants contend that $50 is more than adequate
compensation for 30 “on call” hours during which an employee may
or may not be required to work. (See, id. at 11 (“[W]hile on
call,
the
employee
was
activities. . . . Although
able
they
were
to
in
go
about
unrelated
fact
compensated,
and
often without even answering a call.”).)
Defendants’ argument amounts in substance (if not in form)
to a claim that any overtime owed to an employee for off-hours
- 20 -
time
spent
working
payment of $50.
on
the
phone,
is
sufficiently
offset
by
Such a fact-intensive question is neither here
nor there, situated as we are at stage one of the certification
analysis.
See, e.g., Nehmelman v. Penn. Nat. Gaming, Inc., 822
F.Supp.2d 745, 757-58 (N.D. Ill. 2011) (“Plaintiff contends that
whether such early out breaks can serve to ‘offset’ overtime
payments is a merits issue not properly addressed at stage one
of the certification analysis.
The Court agrees.”); Alexander
v. Caraustar Indus., Inc., No. 11 C 1007, 2011 WL 2550830, at *2
(N.D. Ill. June 27, 2011) (finding “best left for later in the
litigation” the defendants’ argument that overtime worked by the
plaintiffs
period).
was
offset
by
a
paid
thirty-minute
daily
lunch
Also germane to Defendants’ fact-intensive argument is
Allen v. City of Chicago, No. 10 C 3183, 2013 WL 146389 (N.D.
Ill.
Jan.
“defendant’s
14,
2013).
arguments
There,
the
court
held
regarding
the
variation
in
that
the
off-duty
BlackBerry usage – including the possibility that the usage was
no more than de minimis or was offset by ‘rank credit’ or other
‘premium payments’ under the CBA – is [sic] a matter of the
proof of the merit, vel non, of plaintiff’s claim.” Id. at * 9
(citation omitted).
As in Allen, “[i]t is premature to consider
those arguments at this time.” Id.
- 21 -
As such, Defendants’ twin arguments directed to Guardian’s
“on
call”
showing
policy
that
do
not
service
similarly situated.
undercut
Plaintiffs’
representatives
and
modest
factual
installers
are
Both groups of employees were subjected to
Guardian’s uniform policy of not paying in accordance with the
actual
amount
of
off-hours
time
they
spent
on
the
phone
attending to or preparing for emergency service needs.
*
*
*
In sum, Guardian’s service representatives and installers
are similarly situated because Plaintiffs have made a modest
factual
showing
that
Guardian policies.
both
were
victims
of
the
challenged
Both sets of employees predominantly spend
their days visiting and traveling between job sites to perform
installations, maintenance, and other service work.
They face
similar
(or
pressures
that
may
make
electing
to
take
approval for) a 30-minute lunch break impracticable.
seek
Because
both types of employees drive company vehicles to job sites,
they are similarly situated with respect to Guardian’s alleged
premature
“punching
out”
of
service
employees
upon
their
starting the engine of their vehicles (before completion of all
job-related work).
evidence
to
Further, Defendants have not adduced any
counter
Muir’s
sworn
statements
that
other
employees, such as installers, are similarly situated to service
- 22 -
representatives with respect to Guardian’s alleged failure to
compensate for time spent consulting on the phone.
Finally, the
Court notes the record’s silence on differences between how the
two sets of employees are compensated – indeed, Muir declares
that both service representatives and installers are paid on an
hourly
basis.
Hudgins,
2016
WL
7426135
at
*4
(noting
the
importance of employees’ compensation structure to a similarly
situated finding).
Plaintiffs have at least made a modest factual showing that
service representatives and installers share the “same essential
responsibilities,” and are thus similarly situated for purposes
of the lunch, transit, and phone policies Plaintiffs challenge.
Hudgins, 2016 WL 7426135 at *4; Jirak, 566 F.Supp.2d at 848.
The facts are such that the Court “can ‘envision a scenario’
where [the plaintiffs] and potential collective action members
are similarly situated.”
Brand v. Comcast Corp., No. 12 C 1122,
2012
(N.D.
WL
4482124,
at
*5
Ill.
Sept.
26,
2012)
(quoting
Persin v. CareerBuilder, LLC, No. 05 C 2347, 2005 WL 3159684, at
*1 (N.D. Ill. Nov. 23, 2005)).
That suffices for conditional
certification.
B.
Scope of the Collective
The Court may narrow the lead plaintiff’s proposed opt-in
class
where
the
first-stage
evidence
- 23 -
provides
no
tangible
support for including certain employees.
See, e.g., DeMarco,
2011 WL 3510905 at *4 (limiting certification to direct patient
care providers).
The Court grants in part Plaintiff’s Motion to
certify the requested opt-in class but excludes Guardian office
staff from its purview.
It is certainly true that plaintiffs at the conditional
certification
potential
stage
need
opt-ins.
not
Nor
do
show
identical
distinctions
positions
in
job
functions, or pay necessarily undermine an FLSA class.
of
titles,
There is
wide consensus that arguments about dissimilarities in the class
are
more
appropriately
decided
at
step
two,
after
the
composition of the class is known and discovery has unpacked
some of the factual issues.
(citation omitted).
treat
service
See, Jirak, 566 F.Supp.2d at 850
For these reasons, the Court is willing to
representatives
and
installers
as
similarly
situated despite some variation in their job duties and company
car privileges.
See, Petersen, 2010 WL 5423734 at *7 (finding
rigorous comparisons of daily responsibilities inappropriate).
However, all putative opt-in members must still be victims
of the same common policy or policies; otherwise, the “proposed
class is overbroad.”
case,
Plaintiffs
have
DeMarco, 2011 WL 3510905 at *4.
failed
to
“raise
even
a
In this
permissible
inference that similar conditions were faced by employees not
- 24 -
focused directly on” servicing customers at job sites. Id.
simply,
office
staff
do
not
experience
work
Put
conditions
necessitating floating or discretionary lunch breaks, working on
job sites, or responding to emergency service requests while “on
call.”
Nothing
supports
perform
itinerant
work
the
notion
outside
vehicles, or work on job sites.
the
that
office
office,
staff
drive
ever
company
Similarly, because the only
particulars in Plaintiffs’ phone policy evidence relate to inperson
emergency
modest
factual
service
showing
calls,
that
Plaintiffs
office
staff
fall
were
short
of
victims
a
of
Guardian’s “on call” policy or otherwise were shorted overtime
based on uncompensated call time.
Other than liberal use of the
term “all employees,” nothing in Muir’s affidavit sustains a
modest factual showing that office staff are similarly situated
for purposes of the challenged policies.
As
such,
the
Court
modifies
the
proposed
collective
as
follows:
All service representatives and installers shorted
overtime wages based on Guardian’s lunch break policy,
its
transit
policy
of
under-compensating
work
performed at day’s end and/or time spent commuting to
job sites, or its policy of refusing to pay for offhours time spent consulting on the phone.
C.
Equitable Tolling
Plaintiffs ask that the statute of limitations be tolled to
allow those whose claims would otherwise be time-barred to opt
- 25 -
in to the collective.
(See, Pls.’ Mem. at 12.)
Equitable
tolling may be appropriate if a plaintiff shows (1) diligence in
pursuing her rights and (2) that some extraordinary circumstance
prevented timely filing.
McQuiggin v. Perkins, 133 S.Ct. 1924,
1931-32 (2013) (quotation omitted).
sparingly.
The doctrine should be used
See, Wilson v. Battles, 302 F.3d 745, 749 (7th Cir.
2002).
In this case, Plaintiffs have provided the Court with no
facts
or
argument
circumstances.
setting
forth
such
extraordinary
Indeed, neither party briefed the issue.
The
Court therefore denies Plaintiffs’ request for equitable tolling
without
prejudice
factors
as
“to
refile
individual
cases
a
motion,
factually
setting
out
warrant.”
specific
Ries
v.
Planesphere, Inc., No. 16 C 3667, 2016 WL 6277466, at *3 (N.D.
Ill. Oct. 27, 2016).
D.
Having
determined
Notice
that
conditional
certification
is
appropriate, the Court considers Plaintiffs’ request for limited
discovery
information
of
potential
and
for
opt-ins’
identities
Court-facilitated
notice.
and
contact
Specifically,
Plaintiffs request that the Court order Defendants to produce
the full names and the last known work and home addresses, email
addresses,
phone
numbers,
and
date(s)
- 26 -
of
employment
for
all
potential opt-ins.
Plaintiffs ask the Court to approve a notice
based on a form to be submitted by the parties and to approve
transmittal of the notice via U.S. mail, website, posted message
at Guardian’s work site, email, and text message.
Pls.’ Mem. at 12.)
(Mot. at 2;
Plaintiffs also request an opt-in period of
ninety (90) days after the notice has been circulated.
than
importuning
the
Court
to
deny
Plaintiffs’
Other
Motion,
Defendants do not contest any feature of the requested discovery
or notice.
It
is
common
practice
to
grant
a
request
for
potential
plaintiffs’ names, phone numbers, and physical addresses.
See,
e.g., Boltinghouse v. Abbot Labs., Inc., 196 F.Supp.3d 838, 844
(N.D. Ill. 2016).
Email addresses are also standard fare.
See,
e.g., Nehmelman, 822 F.Supp.2d at 767; Girolamo v. Community
Physical Therapy & Asscs., Ltd., 2016 WL 3693426, at *5-6 (N.D.
Ill.
July
12,
2016).
With
respect
to
the
final
piece
of
personal data sought, dates of employment, this information is
also
discoverable
upon
a
grant
of
conditional
See, e.g., Girolamo, 2016 WL 3693426 at *6.
certification.
To the extent
Defendants have privacy concerns, “[a] protective order limiting
the
use
of
this
information
adequately address [them].”
to
its
intended
purpose
Russell, 575 F.Supp.2d at 939.
- 27 -
will
Notice
via
U.S.
mail
and
a
posting
in
an
employee-only
section of a subject facility are “classic” means of apprising
potential opt-in plaintiffs of an FLSA action.
Ries, 2016 WL
6277466 at *3; Blakes v. Ill. Bell Tel. Co., No. 11 C 336, 2011
WL 2446598, at *10 (N.D. Ill. Jun. 15, 2011) (authorizing the
posting of notice “wherever other employment related postings
are
placed”).
District
courts
are
split,
however,
on
the
question whether e-mail notice is appropriate in FLSA collective
actions.
cases).
See, Boltinghouse, 196 F.Supp.3d at 844 (collecting
Given email’s ubiquity as a means of communication, the
Court concludes that additional notice by email is “likely to
advance
the
likelihood
notice.”
remedial
that
Id.
all
at
844
purpose
of
potential
the
opt-in
(internal
FLSA
by
increasing
plaintiffs
quotation
marks
will
the
receive
omitted);
see
also, Pieksma, 2016 WL 7409909 at *6; Watson v. Jimmy John’s,
LLC, 15 C 6010, 2016 WL 106333, at *1 (N.D. Ill. Jan. 5, 2016)
(“[A]llowing
email
complicate,
the
[undesirable]
notice
notice
potential
will
facilitate,
process.”).
for
rather
Mindful
recipients
to
of
modify
than
“the
and
redistribute email messages,” Espenscheid v. DirecStat USA, LLC,
No. 09 C 625, 2010 WL 2330309, at *14 (W.D. Wis. Jun. 7, 2010),
the
Court
requires
that
the
notice
be
emailed
as
a
.pdf
attachment rather than included in the body of the email message
- 28 -
sent to potential opt-ins.
See, Boltinghouse, 196 F.Supp.3d at
844.
Plaintiffs
also
request
notice
via a website and text message.
in
two
additional
forms:
Plaintiffs have cited no case
law from this circuit authorizing such forms of notice in a
collective action.
In fact, Plaintiffs’ counsel recently and
unsuccessfully argued for the same in a sister court.
See,
Ries, 2016 WL 6277466 at *3 (denying request for notice via text
message).
Nor have Plaintiffs offered any reason for thinking
that the added cost of such forms of notice would be justified.
Rather than adding value by reaching potential opt-ins beyond
those reached by email, additional notice via website and text
message is more likely to duplicate email notification.
These
forms of notice are simply too scant of authority and too likely
to impose unwarranted added costs to be imposed here.
Under 29 U.S.C. § 255, a cause of action arising out of a
willful violation of the FLSA must be commenced within three
years
after
the
cause
of
action
accrued.
Here,
Plaintiffs
allege that Defendants’ violations were willful, thus justifying
a three-year statute of limitations.
Salmans, 2013 WL 707992 at *6.
See, 29 U.S.C. § 255(a);
An opt-in FLSA plaintiff is
deemed to have commenced her claim when she files notice of
consent to join the collective action.
- 29 -
Harkins v. Riverboat
Servs., Inc., 385 F.3d 1099, 1101-02 (7th Cir. 2004).
the
Court
authorizes
notice
to
those
installers
and
As such,
service
representatives who worked for Guardian within the three years
preceding the date on which notice is sent.
WL
707992
at
*6.
In
the
absence
of
See, Salmans, 2013
tolling,
only
these
individuals are eligible to join the collective.
Finally, the length of the notice period shall be sixty
(60) days instead of the ninety (90) days Plaintiffs request.
Although courts in this circuit have approved opt-in periods
ranging from 45 to 120 days, “the relatively small number of
potential class members who worked as [service representatives]
and [installers] at this single [facility] during a three-year
period”
militates
in
favor
of
a
60-day
opt-in
period.
Nehmelman, 822 F.Supp.2d at 764-65.
The Court invites the parties to meet and confer in an
effort
to
formulate
a
notice
document
that
accords
with
the
Court’s rulings herein.
IV.
CONCLUSION
For the reasons stated herein, the Court grants Plaintiffs’
Motion in part as follows:
1.
All
the conditionally certified collective is defined as:
service
representatives
and
installers
shorted
overtime
wages based on Guardian’s lunch break policy, its transit policy
- 30 -
of under-compensating work performed at day’s end and/or time
spent commuting to job sites, or its policy of refusing to pay
for off-hours time spent consulting on the phone;
2.
the Court directs Defendants to provide Plaintiffs, by
no later than March 27, 2017, the names and the last known
addresses,
phone
numbers,
email
addresses,
and
dates
of
employment for all potential opt-ins;
3.
and
the Court authorizes Plaintiffs to transmit the notice
consent
employee-only
form
by
area
of
U.S.
mail,
email,
Guardian’s
and
facility
a
posting
where
in
notices
an
are
typically displayed;
4.
the Court denies Plaintiffs’ request for notice via
website and text message;
5.
and
the opt-in period shall be sixty (60) days from the
date notice is mailed and posted.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated:
03/13/17
- 31 -
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