Ivery et al v. RMH Franchise Corp. et al

Filing 89

MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 12/8/2017: For the reasons set forth in the Memorandum Opinion and Order, the defendants' partial motion to dismiss 69 is granted. RMH Franchise is dismissed as a defen dant without prejudice. Ivery has until January 8, 2018 to file an amended complaint that addresses the pleading deficiencies outlined in the opinion regarding RMH Franchise. Ivery's claim under the Illinois Wage Payment and Collection Act is di smissed with prejudice. The defendants' motion for leave to supplement their amended response to Ivery's motion for court-ordered notice 87 is granted. Ivery's motion for court-authorized notice pursuant to Section 216(b) of the Fair Labor Standards Act 35 is granted in part and denied in part. The Court conditionally certifies a collective of assistant managers who worked at Applebee's restaurants operated by RMH Holdings, or its subsidiaries RMH Illinois and RMH Franchi se, between March 1, 2014 and the present. The Court also approves Ivery's proposed notice and reminder mailings with the modifications set forth in the opinion. Moreover, the Court orders that the defendants produce to Ivery, in digital form, the employee contact information outlined in the opinion by December 22, 2017. Mailed notice(air, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHAMORA IVERY, individually and
on behalf of others similarly situated,
Plaintiff,
v.
RMH FRANCHISE CORP., RMH
ILLINOIS, LLC, and RMH
FRANCHISE HOLDINGS, INC.,
Defendants.

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No. 17 C 1619
Judge John J. Tharp, Jr.

MEMORANDUM OPINION AND ORDER
This is an action for unpaid overtime wages. Plaintiff Chamora Ivery contends that
Defendant RMH Franchise Holdings, Inc. (“RMH Holdings”) and its subsidiaries, RMH
Franchise Corp. (“RMH Franchise”) and RMH Illinois, LLC (“RMH Illinois”)—owners of
franchised Applebee’s Neighborhood Grill & Bar (“Applebee’s”) restaurants—improperly
classified her and other assistant managers (“AMs”) as exempt from overtime under the Fair
Labor Standards Act (“FLSA”) and Illinois wage laws. Before the Court are two motions. The
first is Ivery’s motion for conditional certification of a FLSA collective action and for
authorization to issue step-one notice. Ivery contends that she is similarly situated to other AMs
who worked for the defendants and asks the Court to notify those AMs about their right to opt in
as plaintiffs in this litigation. The second is the defendants’ partial motion to dismiss. The
defendants argue that Ivery does not properly allege that RMH Franchise was her employer and
thus is not a proper defendant, and that Ivery fails to plead a necessary element of one her Illinois
wage claims. For the reasons stated below, the motion to dismiss is granted and the motion for
conditional certification is granted in part and denied in part.

I.

Background

The following allegations are taken from Ivery’s amended complaint. The defendants
operate an Applebee’s franchise with over 175 restaurants throughout the United States. (Am.
Compl. ¶¶ 1-2, ECF No. 65.) RMH Holdings is the parent company of the franchise, while RMH
Franchise and RMH Illinois are its subsidiaries. (Id. ¶¶ 34, 41, 48.) The defendants operate a
single website to advertise their restaurants. (Id. ¶¶ 3, 26.) They share office space, a human
resource staff, payroll functions, training materials, and an onboarding system to manage their
employees. (Id. ¶¶ 23, 26.) The defendants also maintain joint control and oversight over human
resources, compensation, timekeeping, and other employment policies and practices, and apply
the same employment policies and procedures to AMs at all of their restaurants. (Id. ¶¶ 37-38,
44-45, 51-52.) Moreover, the defendants use the same job postings and descriptions to advertise
open AM positions and allow their employees to transfer seamlessly across locations. (Id. ¶¶ 2425.)
Ivery worked as an AM at an Applebee’s location in Chicago, Illinois between early 2013
and June 2014. (Id. ¶ 15.) According to the amended complaint, Ivery was employed by
“RMH”—which the complaint defines as all three defendants—during that period. (Id. ¶¶ 1, 15.)
Ivery worked an average of 50 to 60 hours per week as an AM. (Id. ¶ 17.) However, the
defendants did not pay her overtime for any time worked in excess of 40 hours per week, even
though she frequently performed the functions of an hourly employee. (Id. ¶¶ 16, 18.)
Ivery asserts several related causes of action. She claims that the defendants’ policy of
classifying AMs as exempt from overtime violates the FLSA, the Illinois Minimum Wage Law,
820 Ill. Comp. Stat. 105/1 et seq. (“IMWL”), and the Illinois Wage Payment and Collection Act,
820 Ill. Comp. Stat. 115/1 et seq. (“IWPCA”). She seeks to certify a collective action under the
FLSA and a class action under both the IMWL and IWPCA to recover unpaid overtimes wages.
2

The initial complaint was filed on March 1, 2017. 1 On May 5, 2017, Ivery filed a notice
of consent to be party in a FLSA collective action. (Notice of Consent, ECF No. 33.) Ten days
later, she moved for conditional certification and for authorization to issue notice to prospective
opt-in members. (Mot. for Court-Authorized Notice, ECF No. 35.) Ivery’s proposed collective
includes anyone who has “been employed as an [AM], including a Front of House Manager or
Kitchen Manager, at an Applebee’s restaurant operated by RMH between March 1, 2014 and the
present.” (Pl. Court-Authorized Notice, ECF No. 37-4.) While her motion for certification was
pending, Ivery filed, with the approval of the Court, an amended complaint on July 6, 2017.
(Order, ECF No. 64.) Two weeks later, the defendants filed a partial motion to dismiss her
amended complaint. (Defs. Mot. to Dismiss, ECF No. 69.) The Court will address the
defendants’ motion to dismiss first and then turn to Ivery’s certification motion.
II.
A.

Discussion

The Defendants’ Motion to Dismiss

The defendants ask the Court to dismiss RMH Franchise as a defendant altogether and to
dismiss Ivery’s IWPCA claim. They seek dismissal of RMH Franchise on two fronts: under Rule
12(b)(1) for lack of standing (and thus lack of subject matter jurisdiction) and under Rule
12(b)(6) for failure to state a claim. The defendants also move to dismiss Ivery’s IWPCA claim
under Rule 12(b)(6) on the basis that she has failed to assert an essential element of that claim.
To survive the defendants’ standing challenge, Ivery must show that she suffered (1) an
injury in fact that is (2) fairly traceable to the challenged conduct of RMH Franchise and (3) that
likely will be redressed by a favorable decision. Berger v. Nat’l Collegiate Athletic Ass’n, 843

1

The complaint was filed on behalf of Ivery and Noah Siebenaller, an AM who worked
for the defendants in Wyoming between November 2014 and August 2015. Siebenaller, though,
has since been dismissed from this suit. (Stipulation of Dismissal, May 16, 2014, ECF No. 39.)

3

F.3d 285, 289 (7th Cir. 2016) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 180-81 (2000)). Here, the defendants raise a facial challenge to standing,
(Defs. Mem. in Supp. of Mot. to Dismiss 12, ECF No. 70); thus, the Court must evaluate whether
Ivery’s complaint adequately pleads the elements of standing by applying the “same analysis
used to review whether a complaint adequately states a claim” under Rule 12(b)(6). Silha v. ACT,
Inc., 807 F.3d 169, 173-74 (7th Cir. 2015) (citations omitted). Ivery therefore “must plead
sufficient factual allegations, taken as true, that ‘plausibly suggest’ each standing element is met.
Berger, 843 F.3d at 289 (quoting Silha, 807 F.3d at 174).
To overcome a Rule 12(b)(6) motion, “a complaint must ‘state a claim to relief that is
plausible on its face.’” Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” W. Bend Mut. Ins. Co. v. Schumacher, 844 F.3d
670, 675 (7th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). This Court “must
accept as true all factual allegations in the . . . complaint and draw all permissible inferences” in
Ivery’s favor. Id. (quoting Bible v. United Student Aid Funds, Inc., 799 F.3d 633, 639 (7th Cir.
2015) (internal quotation marks omitted)). However, “[w]hile a plaintiff need not plead ‘detailed
factual allegations’ to survive a motion to dismiss, she still must provide more than mere ‘labels
and conclusions or a formulaic recitation of the elements of a cause of action’ for her complaint
to be considered adequate under [Rule] 8.” Bell v. City of Chicago, 835 F.3d 736, 738 (7th Cir.
2016) (quoting Iqbal, 556 U.S. at 678).

4

1.

Dismissal of RMH Franchise: Joint Employer Liability

Although the defendants move to dismiss RMH Franchise for lack of standing and failure
to state a claim, both challenges center on a single issue: whether Ivery adequately alleges that
RMH Franchise was her employer under the FLSA. The basis for dismissal under Rule 12(b)(6)
is that liability for unpaid overtime wages extends only to an “employer.” 29 U.S.C. § 207(a).
And because employees have standing to sue only their current or former employers under the
FLSA, dismissal under Rule 12(b)(1) also hinges on Ivery’s relationship with RMH Franchise.
Berger, 843 F.3d at 289 (“Under the FLSA, alleged employees’ injuries are only traceable to,
and redressable by, those who employed them.”) (internal quotation marks omitted). 2
The language of the statute should be the starting place for a determination of Ivery’s
status vis-à-vis RMH Franchise, but the text of the FLSA provides no guidance in this regard,
unhelpfully defining employment relationships in circular fashion. An “employee” means “any
individual employed by an employer.” Id. § 203(e). To “employ” means to “suffer or permit to
work.” Id. § 203(g). And “employer” includes “any person acting directly or indirectly in the
interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). In the absence of a
meaningful statutory definition, and consistent with Supreme Court guidance to construe the
terms “employer” and “employee” broadly, the Seventh Circuit has concluded that courts must
examine the economic reality of the working relationship to assess whether an entity is an

2

Although Ivery asserts claims against RMH Franchise under the IMWL and IWPCA as
well, the Court need not analyze those statutes for two reasons. Several courts have found, and
the parties do not dispute, that the “employer” analysis is the same under the FLSA and the
IMWL. (Defs. Mem. 5 n.1, ECF No. 70; Pl. Mem. in Opp’n to Defs. Mot. to Dismiss 4-7, ECF
No. 73); see, e.g., Schneider v. Cornerstone Pints, Inc., 148 F. Supp. 3d 690, 696 n.2 (N.D. Ill.
2015); Nehmelman v. Penn Nat’l Gaming, Inc., 790 F. Supp. 2d 787, 795 n.3 (N.D. Ill. 2011);
Villareal v. El Chile, Inc., 776 F. Supp. 2d 778, 784 (N.D. Ill. 2011). Moreover, as discussed
below, Ivery appears to have abandoned her IWPCA claim. Thus, the Court will evaluate
whether RMH Franchise is an employer only under the FLSA.

5

employer. Hollins v. Regency Corp., 867 F.3d 830, 835 (7th Cir. 2017); see also Goldberg v.
Whitaker House Coop., 366 U.S. 28, 33 (1961). Whether an entity is an employer under the Act
is a question of law. Karr v. Strong Detective Agency Inc., 787 F.2d 1205, 1206-07 (7th Cir.
1986).
In examining the “economic realities” of working relationships, courts must look to “the
totality of the circumstances” instead of applying “formalistic labels or common law concepts of
agency.” Villareal, 776 F. Supp. 2d at 785 (citing Goldberg, 366 U.S. at 33; Donovan v. Sabine
Irrigation Co., Inc., 695 F.2d 190, 194 (5th Cir. 1983)). Although there is no set framework for
establishing an employer-employee relationship, many courts look at whether the defendant
(1) had the power to hire and fire the employee, (2) supervised and controlled the employee’s
work schedule or conditions of employment, (3) determined the rate and method of payment, and
(4) maintained employment records. See, e.g., Zampos v. W & E Commc’ns, Inc., 970 F. Supp.
2d 794, 802 (N.D. Ill. 2013); Babych v. Psychiatric Solutions, Inc., No. 09 C 8000, 2011 WL
5507374, at *6 (N.D. Ill. Nov. 9, 2011); Nehmelman, 790 F. Supp. 2d at 795. 3 The Seventh
Circuit has found these factors to be relevant to the employer analysis; however, it has cautioned
that they are not “the only relevant factors, or even the most important.” Moldenhauer v.
Tazewell-Pekin Consol. Commc’ns Ctr., 536 F.3d 640, 643 (7th Cir. 2008) (applying FLSA
standard for joint-employer to claim under the Family and Medical Leave Act).
It is well accepted that an employee may have more than one employer at a time. See
Falk v. Brennan, 414 U.S. 190, 195 (1973). Indeed, federal regulations contemplate that entities
that share common control over an employee may be deemed “joint employers” under the FLSA.

3

These four factors originated with the district court in Bonnette v. California Health and
Welfare Agency, 525 F. Supp. 128, 135 (N.D. Cal. 1981). They often are referred to as “the
Bonnette factors.”
6

29 C.F.R. § 791.2(a). Courts apply the same economic reality test “to determine whether more
than one employer may be held liable under the FLSA.” Babych, 2011 WL 5507374, at *7
(citing Reyes v. Remington Hybrid Seed Co., Inc., 495 F.3d 403, 406-08 (7th Cir. 2007)). And
while the joint employer analysis turns on the specific facts of each case, the Seventh Circuit has
emphasized that “for a joint-employer relationship to exist, each alleged employer must exercise
control over the working conditions of the employee.” Moldenhauer, 536 F.3d at 644.
Ivery alleges that RMH Franchise, RMH Illinois, and RMH Holdings shared control over
her work and thus all qualify as her joint employers. (Am. Compl. ¶¶ 1, 15; Pl. Opp’n 4, ECF
No. 73.) The defendants do not contest that RMH Illinois and RMH Holdings were her
employers under the FLSA; they challenge only Ivery’s claim that RMH Franchise was also her
employer. Their principal argument is that Ivery’s allegation that she worked for RMH Franchise
is “conclusory.” (Defs. Mem. 2, ECF No. 70.) Instead of providing details of her employment
relationship with RMH Franchise, Ivery asserts only “boilerplate” allegations of joint
employment that fail to “differentiate” between the three defendants, which are separate
corporate entities. (Id. at 2, 7-10.) As such, the defendants contend that Ivery pleads “no facts” in
her complaint that plausibly “establish she was ever employed by RMH Franchise.” (Id. at 7.)
Ivery counters that her joint employment allegations are sufficient to give RMH Franchise fair
notice of her joint employer theory and to plausibly support that theory. (Pl. Opp’n 3-4.)
The Court finds that the defendants have the better of the argument. For starters, Ivery
fails to allege even the most basic facts concerning her employment as an AM; namely, who
hired her, paid her, or directly supervised her work. By omitting such information, the amended
complaint fails to identify which of the defendant entities was Ivery’s primary, direct employer.
That deficiency alone is enough to sink her claim. See Cavallaro v. UMass Mem’l Healthcare,

7

Inc., 678 F.3d 1, 9-10 (1st Cir. 2012) (finding that “some direct employer needs to be identified
before anyone in a group could be liable” on a joint-employer theory under the FLSA); Nakahata
v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 201 (2d Cir. 2013) (noting in
dicta that plaintiff’s “actual and direct employer is an essential element of notice pleading” in
FLSA action involving related defendants); Davis v. Abington Mem’l Hosp., 817 F. Supp. 2d
556, 563-64 (E.D. Pa. 2011) (rejecting joint employment theory where complaint did not plead
facts that identified which defendants primarily employed each plaintiff, such as “to which
[defendants] they reported each day; from whom they received their paycheck; information about
who, specifically, set their rate of pay and other conditions of employment; or who directly
supervised their employment.”); see also Heuberger v. Smith, No. 16 C 386-JD-JEM, 2017 WL
3923271, at *11-15 (N.D. Ind. Sept. 7, 2017) (discussing how “the four Bonnette factors, as used
to determine whether multiple entities are a ‘joint employer’ for FLSA liability purposes,
establish the proper analysis to determine whether a plaintiff has standing to sue entities apart
from his immediate employer” in dismissing FLSA claim for lack of standing).
Ivery does not suggest that this sort of basic information is beyond her ken. Nor does she
contend that identifying a primary employer would waive a claim against the other two
defendants. The omission of this information from her complaint therefore suggests that her joint
employer allegations should be viewed as an exercise in artful pleading rather than as a good
faith effort to provide fair notice of a claim against RMH Franchise. A number of other courts
have seen through this approach and made clear that there is no room for “game-playing
omissions of plainly relevant detail” concerning a plaintiff’s direct employer. Cavallaro, 678
F.3d at 10 & n.10 (collecting cases).

8

But even setting that issue aside, the amended complaint fails to plausibly show that
RMH Franchise was her joint employer. As the defendants maintain, many of Ivery’s allegations
simply parrot factors relevant to the issue of joint employment, including conclusory statements
like: “Defendants share control over the terms and conditions of AMs’ employment,” (Am.
Compl. ¶ 27); “Each Defendant, directly or indirectly and jointly or severally, directed the terms
of employment and compensation of Plaintiff,” (id. ¶ 29); and “Each Defendant had the power to
control the terms and conditions of employment of Plaintiff,” (id. ¶ 31). 4 These sorts of
conclusory allegations are not entitled to a presumption of truth. Iqbal, 556 U.S. at 678 (“[T]he
tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.”); see also Twombly, 550 U.S. at 555.
The remaining allegations do not make up the pleading deficit concerning RMH
Franchise either. 5 The amended complaint, to be sure, includes some allegations that support an
inference that there was cooperation and integration between RMH Holdings, RMH Franchise,
and RMH Illinois. It alleges that all three defendants shared office space, a website, and human
resources staff, (Am. Compl. ¶ 26); had control and oversight over compensation, timekeeping,
payroll and other policies that applied to Ivery and all other AMs, (id. ¶¶ 23, 37, 44, 51); applied
4

Other allegations in the amended complaint are similarly deficient, including: “Each
Defendant employed or acted in the interest of an employer towards Plaintiff,” (id. ¶ 28); “Upon
information and belief, the Defendants operate in concert . . . so that they operate as joint
employers,” (id. ¶ 30); and “Defendants jointly employed Plaintiff,” (id. ¶ 32). Ivery, though,
does not rely on these allegations in her opposition to the defendants’ motion to dismiss. (See Pl.
Opp’n 6-7, ECF No. 73).
5

Despite Ivery’s artful pleading, it appears to be undisputed that Ivery never worked in a
restaurant owned by RMH Franchise. Ivery avers that she worked for the defendants only in
Illinois, (Am. Compl. ¶ 15), and the defendants state in their opening brief that the Illinois
location was owned and operated by RMH Illinois, (Defs. Mem. 2, ECF No. 70). In response,
Ivery argues only that RMH Franchise was her “statutory” employer, (Pl. Opp’n 2, ECF No. 73),
and does not dispute that the Chicago area restaurant that she references in the amended
complaint was owned by RMH Illinois.

9

the same employment policies to AMs at all RMH restaurants, including policies relating to
payment of overtime, (id. ¶¶ 38, 45, 52); and permitted AMs to transfer seamlessly between
RMH locations, (id. ¶ 25). But these allegations, at most, show that RMH Franchise played some
role in developing policies that applied to Ivery; they fall short of showing that RMH Franchise
itself played any role in applying and enforcing such policies against her. See Richardson v. Help
at Home, LLC, No. 17 C 00060, 2017 WL 2080448, at *3 (N.D. Ill. May 15, 2017) (“The test for
joint employer liability is to look at all facts surrounding the defendant’s supervision of the
employee and determine whether the defendant exercised control and authority over the
employee in a manner that caused the FLSA violation (at least in part).”) (citation omitted)
(emphasis added).
Cooperation between affiliates does not imply control. That the defendants shared a
payroll service, for example, does not suggest that RMH Franchise pays the employees of RMH
Illinois, or vice versa. Similarly, that the two subsidiaries contributed to a common employment
policy says nothing about whether RMH Franchise had any authority to compel RMH Illinois to
adopt those policies or to enforce those policies against employees of RMH Illinois. See
Sampson v. MediSys Health Network, Inc., No. 10 C 1342, 2012 WL 3027838, at *4 (E.D.N.Y.
July 24, 2012) (discussing how allegations that defendants had “centralized approach to
management and human resources” and a “centralized payroll system” suggest “some kind of
affiliation among the defendants” but do not indicate which defendant had “a direct role in
controlling the plaintiffs’ conditions of employment or in determining their rate and method of
payment”). These two companies were each subsidiaries of RMH Holdings, and though it may
be reasonable to infer that RMH Holdings, as the parent corporation of RMH Franchise and
RMH Illinois, had the authority to direct those subsidiaries to comply with such policies, there is

10

no similar basis to infer that one subsidiary had authority to enforce those policies on the other
subsidiary. See Cavallaro v. UMass Mem’l Health Care, Inc., 971 F. Supp. 2d 139, 149 (D.
Mass. 2013) (finding allegations that parent centrally controlled human resources and that
subsidiaries implemented system-wide policies plausibly showed that employee’s compensation
was controlled by parent, but not by sister subsidiaries).
Moreover, the amended complaint includes no allegations that RMH Franchise (as
distinguished from RMH Holdings, the parent corporation) had any authority to direct RMH
Illinois to enter into such arrangements or to control the activities of RMH Illinois employees. It
does not allege that RMH Franchise hired Ivery or had the authority to fire her. There are no
allegations that RMH Franchise set Ivery’s work schedule, directly supervised her day-to-day
work as an AM, or issued her payroll checks. These are the types of allegations that allow courts
to draw reasonable inferences that an entity “controls” working conditions. See, e.g., Heuberger,
2017 WL 3923271, at *2, *12 (determining which of three affiliated entities exercised control
over plaintiff based on plaintiff’s paychecks and other documents he received from his employer
in dismissing FLSA claims against other two); Slamna v. API Rest. Corp., No. 12 C 757 (RWS),
2012 WL 2979067, at *4-5 (S.D.N.Y. July 20, 2012) (finding that only two of four affiliated
restaurants could be considered employers on motion to dismiss after reviewing ownership
structure of restaurants and which restaurants paid the plaintiffs); see also Ash v. Anderson
Merchandisers, LLC, 799 F.3d 957, 961 (8th Cir. 2015) (discussing how facts such as “the name
on [the plaintiffs’] business cards, the identify of their supervisors, the source of their work
schedules, and the information they were given when they were hired” are the type of allegations

11

that could allow a court to reasonably infer that a defendant was a joint employer). Yet, Ivery’s
complaint includes no such allegations. 6
Ivery cites to several cases to support her argument that she sufficiently alleges a joint
employment relationship with RMH Franchise, but none that would excuse her failure to identify
an actual employer. For example, in Vega v. Contract Cleaning Maintenance, Inc., the plaintiffs
pled several facts that show for whom they primarily worked, including which defendant set
their schedules, provided them with the equipment to perform their duties, and paid them on an
hourly basis. No. 03 C 9130, 2004 WL 2358274, at *2 (N.D. Ill. Oct. 18, 2004). Similarly, in
Guon v. John Q. Cook, M.D. LLC, which dealt with whether a medical provider and a human
resource contractor were joint employers, the plaintiff alleged that she worked for the provider
while the contractor had control over her hiring and pay. No. 16 C 3840, 2016 WL 6524948, at
*2 (N.D. Ill. Nov. 3, 2016). Nehmelman, which involved whether a casino employee sufficiently
alleged that a gaming company and its wholly-owned subsidiary, Empress Casino Joliet, were
both employers, is distinguishable on the same basis. 790 F. Supp. 2d at 795-96. Unlike Ivery,
the plaintiff in that case plead enough to infer that she “took direction” from Empress’
employees. Id. at 796. Thus, the court had some basis to determine a primary employer. 7

6

While it is true that Ivery alleges that “RMH classifie[d] all AMs as exempt” and that
pursuant to this policy “RMH did not pay [her] overtime premium pay,” (Am. Compl. ¶¶ 5, 18),
those allegations, again, do not indicate which of the defendants classified her as exempt or
issued her paycheck.
7

The court does not find Tahir v. Avis Budget Group, Inc., No. 09-3495 (SRC), 2009 WL
4911941 (D.N.J. Dec. 14, 2009) persuasive either. The district court in that case rejected the
defendants’ argument that the plaintiff failed to adequately plead that a holding company was an
employer under the FLSA largely because the defendants relied on facts outside of the
complaint. Id. at *9. The defendants here argue that the complaint is deficient on its face.

12

Consequently, the amended complaint does not plausibly establish an employment
relationship with RMH Franchise. 8 The Court therefore grants the defendants’ motion to dismiss
RMH Franchise pursuant to Rule 12(b)(1) and 12(b)(6). The dismissal, however, is without
prejudice. Ivery is afforded another opportunity to amend her pleading to address the deficiencies
outlined in this opinion. Moreover, as will be seen, this dismissal has no effect on the scope of
notice to the potential members of the collective because even if RMH Franchise is not a
defendant, its employees may nevertheless assert an unpaid overtime claim by virtue of RMH
Holdings’ potential status as a joint employer of its subsidiaries’ AMs.
2.

Dismissal of IWPCA Claim

The defendants also move to dismiss Ivery’s IWPCA claim on the basis that she fails to
plead entitlement to compensation under an employment agreement, a necessary element of that
claim. (Defs. Mem. 13-14, ECF No. 70.) Ivery responds that she does not assert a claim under
that statute. (Pl. Opp’n 9 n.7, ECF No. 73.) Although the amended complaint does in fact allege
an IWPCA claim, (see, e.g., Am. Compl. ¶ 13 (“Plaintiff also brings this action to recover unpaid
overtime compensation for herself and similarly situated current and former Illinois AMs as a
[Rule 23] class action under . . . the Illinois Wage Payment and Collection Act . . . .”), Ivery now
appears to abandon that claim. As a result, the Court grants the defendants’ motion to dismiss
Ivery’s IWPCA claim pursuant to Rule 12(b)(6) and dismisses the claim with prejudice.
B.

Ivery’s Motion for Collective Certification and Step-One Notice

The Court now turns to Ivery’s motion for conditional certification and step-one notice.
Section 16(b) of the FLSA, 29 U.S.C. § 216(b), authorizes employees to act together to seek
redress for violations of the maximum hour provisions of 29 U.S.C. § 207. Ervin v. OS Rest.
8

The same might be said as to the other defendants, but the motion to dismiss seeks
dismissal of RMH Franchise only.

13

Servs., Inc., 632 F.3d 971, 974 (7th Cir. 2011); see Schaefer v. Walker Bros. Enters, Inc., 829
F.3d 551, 553 (7th Cir. 2016) (“Suits under the Fair Labor Standards Act cannot proceed as class
actions. Instead they are opt-in representative actions.”); Alvarez v. City of Chicago, 605 F.3d
445, 448 (7th Cir. 2010). “The 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. Here, Ivery seek to provide such notice to all AMs who worked
for the defendants between March 1, 2014 and the present. (Pl. Notice, ECF No. 37-4); 29 U.S.C.
§ 216(b) (opt-in requirement).
“Neither Congress nor the Seventh Circuit has specified the procedure courts should use
to decide FLSA certification and notice issues, but collective FLSA actions in this district
generally proceed under a two-step process.” Grosscup v. KPW Mgmt., Inc., No. 16 C 6501,
2017 WL 2461538, at *1 (N.D. Ill. June 7, 2017); Salmans v. Byron Udell & Assocs., Inc., No.
12 C 3452, 2013 WL 707992, at *2 (N.D. Ill. Feb. 26, 2013). First, the plaintiffs have the burden
of showing that there are other similarly situated employees who are potential claimants.
Grosscup, 2017 WL 2461538, at *1. The 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. Id.; Bergman v. Kindred Healthcare, Inc., 949 F. Supp. 2d
852, 855 (N.D. Ill. 2013) (“At this stage of the proceedings, plaintiffs must make a modest
factual showing of common, unlawful conduct and provide some indication of harm to
employees.”). Courts use a “lenient interpretation” of the term “similarly situated” in deciding
whether plaintiffs meet this burden. Salmans, 2013 WL 707992, at *2 (quoting Jirak v. Abbott
Labs., Inc., 566 F.Supp.2d 845, 848 (N.D. Ill. 2008)). “There is a low standard of proof.”

14

Bergman, 949 F. Supp. 2d at 855. If the plaintiffs are able to show that other potential plaintiffs
are similarly situated, courts may conditionally certify the suit as a collective action and allow
the plaintiffs to send notice of the case to similarly situated employees who may then opt in as
plaintiffs. Grosscup, 2017 WL 2461538, at *1; Salmans, 2013 WL 707992, at *2.
The second step, occurring after the opt-in and discovery process has been completed, is
more stringent. Once it is known which employees will be part of the collective, the Court must
reevaluate the conditional certification to determine whether there is sufficient similarity
between the named and opt-in plaintiffs to allow the matter to proceed to trial on a collective
basis. Grosscup, 2017 WL 2461538, at *2; Nehmelman, 822 F. Supp. 2d at 751. “If the court
finds insufficient similarities during the second step, it may revoke conditional certification or
divide the class into subclasses.” Grosscup, 2017 WL 2461538, at *2 (quoting Sylvester v.
Wintrust Fin. Corp., No. 12 C 1899, 2013 WL 5433593, at *3 (N.D. Ill. Sept. 30, 2013)).
1.

Similarly Situated Requirement

This case is currently at step one of the collective certification process. To show that she
and other AMs are victims of a common policy or plan that violates the FLSA, Ivery submits two
declarations—one her own and another from Noah Siebenaller, a former plaintiff—attesting to
how they performed similar duties and were uniformly classified as exempt from overtime.9
Ivery testifies that she worked as a front of house manager at the defendants’ restaurant in
Country Club Hills, Illinois between mid-2013 and June 2014. (Ivery Decl. ¶ 3, ECF No. 37-2.) 10

9

Ivery also submits job postings from the website snagajob.com, which advertise open
AM positions at the defendants’ restaurants in 15 states across the country. Because the Court
finds that Ivery has made a modest factual based on the declarations she has submitted and other
evidence presented by the defendants, the Court need not rely on those postings in this analysis.
10

Ivery specifically testifies that she worked at three of the defendants’ restaurants in
Illinois between 2013 and June 2014. However, the Court will consider only her time at the
Country Club Hills location for several reasons. First, the defendants assert that two other
15

During that time, she worked an average of 50-60 hours per week, but was never paid for
overtime. (Id. ¶ 5.) As an AM, Ivery states that she spent about 80% of her time performing
manual and customer services tasks, such as greeting and seating customers, preparing meals,
cleaning the restaurants, unloading delivery trucks, and performing general customer service
duties, among others. (Id. ¶ 6.) Her status as an AM did not exempt Ivery from following any
RMH policies, and she did not have the authority to select menu items, never provided input
regarding promotion or sales strategies, could not set hours of operation or close the restaurant
early, had no authority over budgets, could not establish a dress code for employees, or
unilaterally hire, fire, or make schedules. (Id. ¶¶ 8-15, 17.) And although she admits to
performing some “managerial” duties, such as participating in interviews and creating first drafts
of schedules, Ivery states that those responsibilities took up only a small portion of her work
time. (Id. ¶ 16.) Ivery further testifies that she observed several other AMs at the Country Club
Hills restaurant and states that those AMs performed the same mix of duties as her. (Id. ¶ 18.)
She also states that those AMs were not paid overtime. (Id. ¶ 5.)
Siebenaller testifies that he worked as a kitchen manger in two of the defendants’
restaurants in Wyoming between November 2014 and August 2015. (Siebenaller Decl. ¶¶ 1-3
ECF No. 37-3.) Siebenaller describes his job duties in an almost identical manner to Ivery.
(Compare Ivery Decl. ¶¶ 4-17 with Siebenaller Decl. ¶¶ 4-17.) Moreover, Siebenaller did not

restaurants were owned by a separate, non-RMH franchisor when Ivery worked there. (Defs.
Am. Resp. 6, ECF No. 52; Muldoon Decl. ¶ 9, ECF No. 52-1.) Although the Court does not
weigh evidence at the conditional certification stage, Ivery admits in her deposition—portions of
which the defendants filed as an exhibit in a motion to supplement the record for conditional
certification (ECF No. 86)—that she worked for another franchisor prior to working for the
defendants. (Ivery Dep., Ex. 1, at 173:1-3, 227:2-6, ECF No. 87-1.) And Ivery does contest in
her reply brief that the defendants acquired the other franchisor in mid-June 2013, when she
began working at the Country Club Hills location. Ivery also has not presented any evidence that
she worked at either of the other two restaurants during the proposed collective period.

16

complete any additional training when he moved between restaurants and regularly worked
between 50 and 60 hours per week but was not paid overtime. (Id. ¶¶ 5, 22.) Siebenaller also
observed several other AMs at the two Wyoming locations where he worked, both kitchen and
front of house managers. (Id. ¶ 18.) He states that those AMs performed similar duties as him
and were not paid overtime. (Id. ¶¶ 5, 19.)
The defendants challenge conditional certification on four grounds. Their first argument
is that Ivery cannot represent the putative collective because her own claim is time-barred. (Defs.
Am. Resp. to Pl. Mot. for Notice 10-15, ECF No. 52.) The default limitations period under the
FLSA is two years. 29 U.S.C. § 255(a). A “willful” violation of the Act, though, is subject to a
three-year, rather than a two-year, statute of limitations. Id. The plaintiff bears the burden of
proof on the issue of willfulness. Kelly v. Bank of Am., No. 10 C 5332, 2011 WL 4526674, at *1
(N.D. Ill. Aug. 30, 2011) (citing Bankston v. State of Ill., 60 F.3d 1249, 1253 (7th Cir. 1995)).
There is no question that Ivery’s claim depends on the availability of the three-year statute of
limitations and so to prevail on her own claim she will have to establish that the defendants acted
willfully. The parties disagree, however, on whether Ivery needs to establish willfulness at this
point. The defendants contend that she must meet her burden now and offer evidence that their
classification of AMs was made in good faith—as it was done at the advice of counsel and
confirmed by several Department of Labor reviews. (Defs. Am. Resp. 13-15, ECF No. 52.) Ivery
argues that her allegations of willfulness alone are enough to carry her through step one. (Pl.
Reply 4-7, ECF No. 56; see Am. Compl. ¶ 62.) The Court agrees with Ivery.
As noted, this is but the first step in the collective certification process; one intended not
to definitively resolve the question of whether this case is appropriate for collective treatment but
rather to assess whether it is appropriate to provide court-approved notice to others who appear

17

to be similarly situated of the opportunity to join the case. Genesis Healthcare Corp. v. Symczyk,
569 U.S. 66, 75 (2013) (“The sole consequence of conditional certification is the sending of
court-approved written notice to employees . . . .”). And in the context of a collective action—
where, unlike a class action—the claims of prospective members of the collective are not tolled
by the filing of the action and continue to run until an opt-in notice is filed, it is both unnecessary
and unfair to require plaintiffs to prove the “willfulness” of the defendants’ alleged actions
before permitting notice. Willfulness is an issue that is particularly within the province of the
defendants, and FLSA plaintiffs are unlikely to be able to prove a claim of willfulness without
access to some discovery. Cf. Fed. R. Civ. P. 9(b) (“Malice, intent, knowledge, and other
conditions of a person’s mind may be alleged generally.”). And discovery takes time—time
during which claims of many putative members of the collective may be extinguished by the
limitations period. That is why this Court and several others have held that conclusory
allegations of willfulness suffice to justify providing notice to the putative collective on the basis
of the potentially applicable three-year period. See, e.g., Sylvester, 2013 WL 5433593, at *5
(collecting cases); Lukas v. Advocate Health Care Network & Subsidiaries, No. 14 C 2740, 2014
WL 4783028, at *3 (N.D. Ill. Sept. 24, 2014).
In any event, willfulness goes directly to the merits of the case and is thus premature to
resolve at this juncture. See Brooks v. Safety-Kleen Sys. Inc., No. 11 C 7245, 2012 WL 3598763,
at * 6 (N.D. Ill. Aug. 14, 2011) (rejecting argument that FLSA collective action should not be
conditionally certified because plaintiff relied on three-year statutory period and there was
“strong likelihood” that she could not establish willfulness); see also Briggs v. PNC Fin. Servs.
Grp., Inc., No. 15 C 10447, 2016 WL 401701, at *2 (N.D. Ill. Jan. 20, 2016) (“[A]t this initial
stage, the court does not resolve factual disputes or decide substantive issue going to the

18

merits.”) (internal quotation marks and citation omitted). Indeed, the Court must first determine
whether the defendants have even violated the FLSA before it can find that the violation was
willful. See, e.g., Tamas v. Family Video Movie Club, Inc., No. 11 C 1024, 2013 WL 1286693, at
*9 (N.D. Ill. Mar. 28, 2013) (finding willfulness inquiry to be “premature” on summary
judgment where there had “been no finding that defendants violated the FLSA”).
And although the defendants strongly believe that they implemented their overtime
policy in good faith, (Defs. Am. Resp. 13, ECF No. 52 (“The evidence amply supports
Defendants’ good faith”)), their position is “not a certainty,” Brooks, 2012 WL 3598763, at *6,
and Ivery should have the benefit of discovery to test the defendants’ evidence. Moreover, to the
extent that the defendants contend that notice should not be permitted because Ivery “may not
have a legitimate claim,” (Defs. Am. Resp. 13, ECF No. 52), that is true but unavailing. A FLSA
plaintiff need not prove her claim in order to satisfy the relatively low burden of identifying other
“similarly situated” persons to whom notice should be provided. Nonetheless, this ruling should
not be interpreted as a finding that the defendants acted willfully or that the three-year statute of
limitations applies; those determinations will be made after notice and discovery.
The defendants’ second challenge is that even if Ivery’s claim was timely filed,
certification is inappropriate because she is not an adequate representative of the collective. The
defendants offer two reasons why Ivery is inadequate. First, she has only a minimal stake in the
litigation because she was employed, at most, for 19 days during the three-year statutory period.
(Defs. Am. Resp. 18-19, ECF No. 52.) Second, Ivery is not familiar with the duties performed by
a vast majority of the putative collective because she worked for only RMH Illinois, and that
entity employed only around 9% of potential opt-in plaintiffs. (Id. at 2, 15-16.)

19

Even assuming both contentions are true, 11 the defendants’ argument is unpersuasive.
That other members of a collective may have larger damage claims does not make Ivery an
inadequate representative; her right to recovery will require the same showing of liability that
any other member of the collective has to make. Indeed, in view of the fact that her right to
recovery appears to require a showing of willfulness, Ivery arguably has greater incentive to
build a strong case against the defendants than do plaintiffs whose claims do not require such a
showing. Further, given the availability of attorney’s fees to prevailing plaintiffs in FLSA
cases—see 29 U.S.C. § 216(b) (“The court in [a FLSA collective] action shall . . . allow a
reasonable attorney’s fee to be paid by the defendant . . . .”)—Ivery (more accurately, her
attorneys) will not be faced with any substantial dilemma about whether to invest the time or

11

Ivery takes the position that the statute of limitation on her claim stopped running on
March 1, 2017, the date her complaint was filed, and so her claim covers a period of about three
months. Although it is true as a general matter that “[t]he statute of limitations in a suit based on
federal law . . . stops running when the complaint is filed,” Robinson v. Doe, 272 F.3d 921, 922
(7th Cir. 2001), that does not appear to be the rule in a FLSA case where the plaintiff asserts
claims “individually and on behalf of others similarly situated.” Section 216 of the FLSA permits
“[a]n action to recover” wages owed under the FLSA to “be maintained against any employer . . .
by any one or more employees for and in behalf of himself or themselves and other employees
similarly situated,” but provides that “[n]o employee shall be a party plaintiff to any such action
unless he gives his consent in writing to become such a party and such consent is filed in the
court in which such action is brought.” 29 U.S.C. § 216(b). Section 256 of the FLSA further
clarifies that “in the case of a collective or class action instituted under the [FLSA],” such an
action “shall be considered to be commenced in the case of any individual claimant—(a) on the
date when the complaint is filed, if he is specifically named as a party plaintiff in the complaint
and his written consent to become a party plaintiff is filed on such date in the court in which the
action is brought; or (b) if such written consent was not so filed or if his name did not so
appear—on the subsequent date on which such written consent is filed in the court in which the
action was commenced.” 29 U.S.C. § 256. Although Ivery’s original complaint refers to a
consent form included as Exhibit A, no such attachment was filed with the original complaint.
(See Compl. ¶ 20, ECF No. 1.) Ivery did not file the required consent until May 5, 2017. (Notice
of Consent, ECF No. 33). Moreover, while Ivery alleges that she worked as an AM until “June
2014,” (Am. Compl. ¶ 15), the defendants maintain that her last day of employment was May 24,
2014, (Muldoon Decl. ¶ 10, ECF No. 52-1). Whether Ivery has a claim for 19 days, or 26, or for
three months, though, is not material to the Court’s ruling, so it does not resolve that issue here.

20

resources necessary to pursue Ivery’s claim simply because it is more modest than much of the
rest of the collective.
Moreover, in advancing this argument, the defendants seek to interject the adequacy
prong under Rule 23 into the FLSA’s certification analysis. But “Rule 23 actions are
fundamentally different from collective actions under the FLSA,” Symczyk, 569 U.S. at 74
(citation omitted), and the FLSA has no such adequacy requirement, see, e.g., Butler v.
DirectSAT USA, LLC, 876 F. Supp. 2d 560, 573 n.14 (D. Md. 2012) (“Most courts articulating
the requirements for conditional certification of a collective action . . . have concluded that the
FLSA does not incorporate Rule 23's adequacy criterion for conditional certification.”) (internal
quotation marks and alterations omitted) (collecting cases). Rather, the FLSA requires only that
the collective representative be “similarly situated” to others in terms of the work performed.
The adequacy of a collective representative is, at most, “an equitable consideration at issue in
determining whether to certify a putative class” under the FSLA. In re FedEx Ground Package
Sys., Inc., 662 F. Supp. 2d 1069, 1081-82 (N.D. Ind. 2009). 12
The defendants’ third challenge to conditional certification is based on the contention that
AMs are properly classified as “executive” employees and thus are not victims of a policy that
violates the FLSA. See 29 U.S.C. § 213(a)(1) (FLSA exemptions). The defendants argue that
while Ivery presents some evidence to contest the applicability of the “administrative”
exemption, she does not “seriously dispute” that AMs fall under the executive exemption. (Defs.
Am. Resp. 3, 20-22, ECF No. 52.) This argument is premature as well. Several courts, including
this one, have held that the applicability of FLSA exemptions typically is not addressed during

12

The defendants’ reliance on Sodekson v. East Coast Restaurant & Nightclubs LLC, No.
15 C 2711-RBH, 2016 WL 4613386 (D.S.C. Sept. 6, 2016) is unpersuasive, as that case
addresses none of the points discussed above.

21

step one of the certification analysis. See, e.g., Salmans, 2013 WL 707992, at *5 (“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 provision of the FLSA . . . .”) (citations omitted);
Rottman v. Old Second Bancorp, Inc., 735 F. Supp. 2d. 988, 992 (N.D. Ill. 2010) (collecting
cases). Whether the executive exemption has been properly applied is a question for a later time.
Finally, the defendants ask the Court to at least hold off ruling on certification until the
parties have conducted discovery on “threshold issues critical to the viability of this litigation,”
including “willfulness, employment relationships, and whether [Ivery] is ‘similarly situated’ to
the putative class members.” (Defs. Am. Resp. at 24-25, ECF No. 52.) The defendants believe
that discovery on these issues would take no more than 90 days and have offered to toll the
limitations period for potential opt-in plaintiffs in the meantime. (Id. at 4 n.4, 25.) They argue
that it would be a waste of the Court and the parties’ time and resources to notify the putative
collective only to determine at a later stage that certification was inappropriate based on the same
arguments. (Id. at 24.) They also contend that the increased costs that come with conditional
certification would place undue pressure on them to settle the case, even though they have a
viable argument that their classification decision was proper. (Id.)
Ivery objects to the defendants’ proposal. She characterizes the above issues as “merits”
based—not threshold questions—and argues that discovery on willfulness alone will take much
longer than the defendants suggest. (Pl. Reply 14-16, ECF No. 56.) Moreover, she states that
delaying notice would be “inequitable” because it increases the chance that the defendants’
contact information for the collective will be outdated and that opt-in members will have
inadvertently disposed of relevant evidence. (Id.)

22

The Court concludes that, in this case, notice should precede discovery. As a general
matter, conditional certification is meant only “to determine the size and contour of the group of
employees who may become collective members and whether those potential members are
‘similarly situated.’” Briggs, 2016 WL 401701, at *2 (citing 7B Charles A. Wright et al., Federal
Practice & Procedure § 1807.) It is not meant to “resolve factual disputes or decide substantive
issues going to the merits.” Id. (citations omitted). But that is exactly what the defendants are
asking the Court to do, especially with regard to the issues of willfulness and classification (the
latter of which being framed as a “similarly situated” question). Moreover, this is not a case
where conditional certification discovery promises to be discrete and narrowly tailored; rather,
and as discussed, there is substantial overlap between issues germane to certification and the
merits and the Court is skeptical that discovery on these issues will wrap up in 90 days.13
Moreover, the defendants’ request to conduct pre-certification discovery on Ivery’s employment
relationships is, at this juncture, moot, as the Court has granted their motion to dismiss RMH
Franchise. And although the defendants offer to toll the statute of limitations during precertification discovery and raise concerns about the cost of collective litigation, those issues are
not reason enough in this case to delay notice in this case, particularly when amendments and
motion practice have already delayed the issuance of notice somewhat. Thus, the Court finds that
Ivery has made the modest factual showing necessary to conditionally certify a collective.
2.

Scope of Certification

Having found that conditional certification is appropriate, the Court also concludes that
notice should issue to any AMs who have worked for an Applebee’s restaurant operated by

13

The defendants state that they have already completed discovery on the issues of
willfulness and classification. Ivery, however, is the party that needs the most discovery and her
discovery efforts continue. (See Defs. Suppl. Auth. to Am. Resp. 2 n.3, ECF No. 87-1.)

23

RMH Holdings or its two subsidiaries, RMH Illinois and RMH Franchise, between March 1,
2014 and the present. There is enough evidence to conclude, for purposes of conditional
certification, that AMs across all of the defendants’ Applebee’s restaurants are similarly situated.
See Nicks v. Koch Meat Co., Inc., No. 16 C 6446, 2017 WL 4122743, at *11-12 (N.D. Ill. Sept.
18, 2017) (conditionally certifying FLSA collective as to all of defendants’ divisions across
multiple states where there was evidence of company-wide practice of not paying overtime even
though plaintiffs from only one division had opted in). The defendants admit that all AMs are
classified as FLSA exempt and that they did not pay AMs overtime. (Id. ¶¶ 16, 25.) There also is
evidence that AMs at all restaurants regularly worked more than 40 hours per week. (RMH
Management Handbook 4, ECF No. 52-11 (“Typically, attaining proper management coverage
requires managers to work an average of 55 hours per week.”); AM Job Description 1, ECF No.
52-5 (“Number of Hours Per Week: 55 plus hour work week typically 11 hour shifts . . . .”); see
also Ivery Decl. ¶ 5, ECF No. 37-2 (“As an AM, I regularly worked . . . approximately 50 to 60
hours of work each week”; Siebenaller Decl. ¶ 5, ECF No. 37-3 (same).) Moreover, Ivery and
Siebenaller’s testimony indicates that AMs in at least two different states performed similar
duties and operated under similar conditions as Ivery. (See generally Ivery Decl., ECF No. 35-2,
Siebenaller Decl., ECF No. 35-3.)
The defendants counter that the collective should be limited to AMs at the Country Club
Hills location, as Ivery is the only named plaintiff and that is the only restaurant where she
worked for the defendants. (Defs. Am. Resp. 16-17, ECF No. 52.) But the defendants’ argument
ignores Siebenaller’s testimony that AMs in Wyoming also performed duties similar to Ivery.
Just because Siebenaller has been dismissed from this action does not mean that his observations
are irrelevant. The argument also ignores the other elements of commonalty outlined above,

24

much of which is established by the defendants’ own evidence. In any event, the defendants also
present evidence that AMs perform similar duties on a company-wide basis. (See AM Job
Description, ECF No. 52-5; see also Skalka Decl. ¶ 5, ECF No. 52-7.) Although Ivery and the
defendants paint a different picture of the duties actually performed by AMs, (compare Ivery
Decl., ECF No. 35-2 with Skalka Decl., ECF No. 52-7), the Court need not determine now which
picture is accurate, see Briggs, 2016 WL 401701, at *2.
Alternatively, the defendants suggest that the collective should include only AMs who
worked directly for RMH Illinois because there is no evidence that Ivery worked for RMH
Franchise or that RMH Holdings employed AMs at all. (Defs. Am. Resp. 15-16, ECF No. 52;
Muldoon Decl. ¶¶ 4, 27, ECF No. 52-1.) Neither argument is persuasive. As an initial matter, the
dismissal of RMH Franchise due to Ivery’s failure to adequately plead an employment
relationship with that entity does not mean that notice should be withheld from AMs who
worked directly for RMH Franchise. Regardless of whether RMH Franchise is a defendant, Ivery
has made a modest factual showing that she is similarly situated to AMs who worked for that
entity based on some evidence that RMH Holdings implemented a company-wide policy (that is,
as to both RMH Illinois and RMH Franchise) classifying AMs as exempt and that AMs across all
of the defendants’ restaurants perform similar duties. Furthermore, AMs who worked directly for
RMH Franchise still have a viable claim in this litigation to the extent they can show that RMH
Holdings was their joint employer. Importantly, the defendants have not challenged the adequacy
of the pleadings regarding RMH Holdings’ status as a joint employer of RMH Illinois AMs, and
those allegations apply equally to the relationship between RMH Holdings and RMH Franchise.
In other words, if RMH Holdings is a joint employer of RMH Illinois AMs—a conclusion that

25

the defendants do not concede but did not challenge in their motion to dismiss—then there is no
basis to conclude that RMH Holdings is not a joint employer of RMH Franchise AMs as well.
Nor does it matter, as the defendants seem to suggest, whether RMH Holdings directly
employs AMs. Given its status as a holding company, it does seem unlikely that RMH Holdings
was the primary employer for any restaurant level employees, let alone AMs. Nonetheless, as a
potential joint employer with RMH Franchise and RMH Illinois, it must be considered an
employer of both of those entities’ AMs at this stage. Therefore, the Court is satisfied that there
is a sufficient basis to conditionally certify as a collective all AMs who worked at an Applebee’s
restaurant operated by RMH Holdings, or its subsidiaries RMH Illinois and RMH Franchise,
between March 1, 2014 and the present.
3.

Facilitating Notice

The Court’s final act is to address three procedural issues regarding how notice should be
issued. The first concerns the form of Ivery’s proposed notice. (See Pl. Notice, ECF No. 37-4.)
“Absent reasonable objections by either the defendant or the Court, plaintiffs should be allowed
to use the language of their choice in drafting the notice.” Kelly, 2011 WL 7718421, at *1
(quoting King v. ITT Cont’l Baking Co., No. 84 C 3410, 1986 WL 2628, at *3 (N.D. Ill. Feb. 18,
1986) (Rovner, J.)). “The Court has both the power and the duty to ensure that the notice is fair
and accurate, [but] that power should not be used to alter plaintiffs’ proposed notice unless such
alteration is necessary.” Heitmann v. City of Chicago, 04 C 3304, 2004 WL 1718420, at *3 (N.D.
Ill. July 30, 2004) (quoting King, 1986 WL 2628, at *3). Nonetheless, “the Court must be careful
to avoid the appearance of ‘judicial sponsorship’ or a ‘judicial imprimatur.’” Heuberger, 2017
WL 3923271, at *7 (quoting Hoffmann-La Roche, 493 U.S. 165, 174 (1989)). The defendants
offer no objection to Ivery’s proposed notice and the Court sees the need to make only one

26

modification. Ivery is ordered to remove the case caption from the notice and replace it with her
attorneys’ letterhead. See id. (ordering same); Alexander v. Caraustar Indus., No. 11 C 1007,
2011 WL 2550830, at *3 (N.D. Ill. June 27, 2011) (same). Ivery may still include the case
number and the title in her notice, however.
Second, Ivery asks the Court for an order instructing the defendants to produce certain
employee information to facilitate notice, including employees’ names; work locations; last
known mailing addresses, phone numbers, personal email addresses, and work email addresses;
and for any members whose notices are returned undeliverable, the last four digits of their social
security numbers. (Pl. Mem. in Supp. of Mot. for Notice 13-14, ECF No. 38.) The Court holds
that defendants RMH Holdings and RMH Illinois must produce all of the above information (to
the extent that it is reasonably available to them), except for the social security numbers, for
AMs who have worked for either of those defendants or for RMH Franchise. Although Ivery
points to several cases in which courts have ordered the production of social security numbers
for potential opt-in members, see, e.g., Anyere v. Wells Fargo, Co., Inc., No. 09 C 2769, 2010
WL 1542180, at *5 (N.D. Ill. Apr. 12, 2010), neither those courts nor Ivery explain why such
information is necessary or appropriate. While it might facilitate the plaintiff’s ability to provide
notice to some former AMs, the Court will not assume that in providing social security numbers
to an employer, employees have implicitly agreed that such information may be disclosed to
third parties seeking to contact them about participating in litigation. Thus, the Court declines to
order the production of social security numbers. See Brand v. Comcast Corp., No. 12 C 1122,
2012 WL 4482124, at *9 (N.D. Ill. Sept. 26, 2012) (denying request for social security numbers
on same basis); Blakes v. Ill. Bell Tel. Co., No. 11 C 336, 2011 WL 2446598, at *8 (N.D. Ill.

27

June 15, 2015) (same). The defendants must produce all of the other information outlined above,
in accordance with the above definition of the collective, within 14 days of this ruling.
Finally, Ivery seeks to issue a reminder mailing and email to all potential collective
members half-way through the notice period. (Pl. Mem. 14, ECF No. 38.) The Court sees no
issue with this request and the defendants offer no objection. As with her proposed notice,
however, Ivery must ensure her reminder notice does not include a case caption. (See Pl.
Reminder Notice, ECF No. 37-5.)
*

*

*

For the above reasons, the defendants’ motion to dismiss is granted. RMH Franchise is
dismissed without prejudice, while Ivery’s IWPCA claim is dismissed with prejudice. Ivery has
until January 8, 2018 to file an amended complaint that addresses the deficiencies outlined in this
opinion regarding RMH Franchise. Moreover, Ivery’s motion for conditional certification is
granted in part and denied in part. The Court conditionally certifies a collective of AMs who
worked at Applebee’s restaurants operated by RMH Holdings, or its subsidiaries RMH Illinois
and RMH Franchise, between March 1, 2014 and the present. The Court also approves Ivery’s
proposed notice and reminder with the modifications set forth above. Finally, the Court orders
that RMH Holdings and RMH Illinois produce to Ivery, in digital form, the employee contact
information outlined above, excluding social security numbers, no later than December 22, 2017.

John J. Tharp, Jr.
United States District Judge

Date: December 8, 2017

28