Ruffolo et al v. LaSalle Group, Inc. et al
Filing
33
MEMORANDUM Opinion and Order. Plaintiffs' Motion (Dkt. No. 14) is granted in part and denied in part as set forth in the Court's Opinion. Status hearing set for 3/27/2019 at 9:00 AM. Signed by the Honorable Harry D. Leinenweber on 2/28/2019:Mailed notice(maf)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ARACELIS RUFFOLO and
DOMINIQUE BONSEIGNEUR,
individually and on behalf
those similarly situated,
Plaintiffs,
v.
Case No. 18 C 3305
Judge Harry D. Leinenweber
LaSALLE GROUP, INC. and
TAMYRA MIRACLE, Individually,
Defendants.
MEMORANDUM OPINION AND ORDER
Before
the
Court
is
Plaintiffs’
Motion
for
Conditional
Certification of a Collective Action (Dkt. No. 14) (the “Motion”).
For the reasons stated herein, the Motion is granted in part and
denied in part.
I.
BACKGROUND
This case concerns allegations of wage theft arising from
Plaintiffs’ period of employment with Defendant LaSalle Group,
Inc. (“LaSalle”). LaSalle is a corporation that owns and operates
assisted living facilities throughout the United States, including
several in this judicial district. (Compl. ¶ 2.) Defendant Tamyra
Miracle (“Miracle”) is the Executive Director of LaSalle’s South
Barrington, Illinois location. (Compl. ¶ 3.) Plaintiff Dominique
Bonseigneur
(“Bonseigneur”)
worked
for
LaSalle
first
as
a
caregiver, and later as an administrator. (Bonseigneur Decl. ¶ 2,
Ex. 2 to Pls.’ Mot., Dkt. No. 14.) Bonseigneur worked primarily at
LaSalle’s St. Charles and South Barrington, Illinois locations.
(Id.) Plaintiff Aracelis Ruffolo (“Ruffolo”) worked for LaSalle as
a life engagement specialist, and later as a life engagement
manager, scheduling and overseeing activities for the residents.
(Ruffolo Decl. ¶ 3, Ex. 3 to Pls.’ Mot.) Like Bonseigneur, Ruffolo
worked at both the St. Charles and South Barrington locations.
(Id. at ¶ 2.)
On May 5, 2018, Plaintiffs, along with a third individual who
has since voluntarily dismissed her claims without prejudice,
filed suit against Defendants. Plaintiffs allege that LaSalle
automatically deducts 30 minutes from hourly workers’ daily pay
for a required lunch break, and this deduction is taken regardless
of whether the worker is actually able to take a 30-minute break.
(Compl. ¶ 10, 12.)
Plaintiffs
bring
three
counts
against
Defendants:
(1)
a
putative collective action pursuant to 29 U.S.C. § 216(b) against
LaSalle for violating the Fair Labor Standards Act (FLSA), (2) a
putative class action pursuant to FED. R. CIV. P. 23 against LaSalle
for
violating
the
Illinois
Minimum
Wage
Law
(IMWL),
and
(3)
individual claims by Ruffolo and Bonseigneur against LaSalle and
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Miracle for defamation. Only the FLSA count is relevant for the
instant Motion. Plaintiffs assert that LaSalle violated the FLSA’s
minimum and overtime wage provisions by not paying them for missed
or interrupted lunch breaks. (Compl. ¶ 22.) Plaintiffs propose the
following definition for their FLSA collective: all persons who
have been employed by LaSalle as hourly wage earning (i.e., nonsalaried) employees for the three years preceding the issuance of
the notice. (Pls.’ Mot. at 3, 8.)
Plaintiffs
now
move
the
Court
to
order
conditional
certification of a representative collective action pursuant to
the FLSA. Within that Motion, Plaintiffs also request that the
Court order court-facilitated notice in their proposed form, order
LaSalle to produce a list of all potential opt-in plaintiffs, and
authorize Plaintiffs to send notice to all potential opt-ins.
II.
LEGAL STANDARD
Under the FLSA, employers must pay their hourly workers a
minimum wage and overtime wages for each hour worked in excess of
40 hours per week. 29 U.S.C. §§ 206, 207. The FLSA authorizes
employees to bring a “collective action” against an employer for
violations of the FLSA’s minimum wage and overtime provisions, on
behalf of themselves and other employees “similarly situated.” 29
U.S.C. § 216(b). FLSA lawsuits do not proceed as traditional Rule
23 class actions. Instead, they proceed as “opt-in representative
- 3 -
actions,” or collective actions. Schaefer v. Walker Bros. Enters.,
829 F.3d 551, 553 (7th Cir. 2016); 29 U.S.C. § 216(b). A district
court has wide discretion to manage collective actions. Alvarez v.
City of Chicago, 605 F.3d 445, 449 (7th Cir. 2010) (citation
omitted).
The Seventh Circuit has not articulated a procedure for
determining whether an FLSA lawsuit should proceed as a collective
action. Nor has it set forth criteria for determining whether
employees are “similarly situated.” Pfefferkorn v. PrimeSource
Health Grp., LLC, No. 17-CV-1223, 2019 WL 354968, at *2 (N.D. Ill.
Jan. 29, 2019). Courts in this District, however, have used a twostep process. Id. The first step is “conditional certification,”
in which a plaintiff must make a “modest factual showing” that she
and similarly situated employees were “victims of a common policy”
that violated the FLSA. Id. At this step, Plaintiffs need only
clear a “low bar” to meet their burden. Id. (citation omitted);
Howard v. Securitas Security Services, USA Inc., No. 08 C 2746,
2009 WL 140126, at *5 (N.D. Ill. Jan. 20, 2009) (“[T]he court looks
for no more than a ‘minimal showing’ of similarity.”); Rottman v.
Old Second Bancorp, Inc., 735 F. Supp. 2d 988, 990 (N.D. Ill. 2010)
(finding that the similarly situated standard is a liberal one,
which
“typically
results
in
conditional
collective) (citation omitted).
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certification”
of
a
After parties’ complete discovery, the court conducts the
second, more stringent step of the inquiry. Rottman, 735 F. Supp.
2d at 990. At that point the court knows which employees will be
part
of
the
class
and
it
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.” Id. (citation omitted).
The second step imposes more demanding requirements on plaintiffs,
id., but is not yet relevant at this stage.
III.
LaSalle
argues
that
DISCUSSION
Plaintiff’s
Motion
should
be
denied
because: (1) Plaintiffs failed to provide sufficient evidence to
show a common unlawful policy; (2) Plaintiffs are not similarly
situated to the putative collective; (3) Plaintiffs’ putative
collective is over-broad; and (4) Plaintiffs’ proposed notice form
is improper. The Court will address each argument in turn.
A.
Common Policy or Practice
A successful motion for conditional certification must make
a “modest factual showing” that Plaintiffs and their putative
collective were victims of a common policy or plan that violated
the law. Briggs v. PNC Fin. Servs. Grp., Inc., No. 15-CV-10447,
2016 WL 1043429, at *2 (N.D. Ill. Mar. 16, 2016). Plaintiffs can
make this showing through affidavits, declarations, deposition
- 5 -
testimony,
or
other
documents.
LaSalle
Id.
contends
that
Plaintiffs failed to meet this burden for several reasons.
First,
LaSalle
claims
that
Plaintiffs
merely
alleged
individual FLSA violations, rather than an unlawful company-wide
policy.
submitted
The
Court
disagrees.
declarations
that
Both
allege
Ruffolo
an
and
unlawful
Bonseigneur
company-wide
policy: automatically deducting 30 minutes from all its hourly
employees’ time, regardless of whether or not the employee actually
takes a lunch break. (See Ruffolo Decl. ¶ 5-6; Bonseigneur Decl.
¶ 4-5.) Both Bonseigneur and Ruffolo said that they were often
unable to take a lunch breaks, and that 30 minutes were still
deducted
from
their
pay
when
they
worked
through
lunch.
(Bonseigneur Decl. ¶ 10; Ruffolo Decl. ¶ 8-10.) Bonseigneur, as a
former LaSalle administrator, was also able to allege specific
facts about the company-wide nature of the allegedly unlawful
policy.
(Bonseigneur
Decl.
¶ 6-13.)
Furthermore,
Plaintiffs’
declarations allege personal knowledge of other employees who were
forced to work through unpaid lunch breaks. (See Ruffolo Decl.
¶ 11-12 (“I observed other hourly employees who were unable to
take lunch breaks. I also observed other hourly employees who did
not take a 30-minute break to eat lunch. I talked to other hourly
employees at both locations where I worked about whether or not
they were paid for all hours they worked. Many employees reported
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to me that they too had their pay deducted but were not permitted
to take a lunch break or were not allowed to take the full 30
minutes.”);
Bonseigneur
Decl.
¶ 11-13
(declaring
same).)
Furthermore, Bonseigneur stated that as an administrator, she was
privy to company-wide discussions and trainings that informed her
understanding of an unlawful company-wide lunch deduction policy.
(Bonseigneur Decl. ¶ 6-8, 12-13.) Thus, LaSalle’s first argument
fails.
Second, LaSalle asserts, correctly, that merely deducting an
hourly worker’s time for meal breaks does not violate the FLSA.
See Camilotes v. Resurrection Health Care Corp., 286 F.R.D. 339,
350 (N.D. Ill. 2012). LaSalle contends that its automatic lunch
deduction policy is lawful because it provides a mechanism by which
hourly employees can petition to override the deduction if their
lunch break is interrupted. LaSalle points to its Employee Handbook
to
support
this
position.
LaSalle’s
written
policy
regarding
automatic lunch deductions is as follows:
Employees will be provided a meal break of either 30
minutes or 60 minutes. . . . The meal period will not be
included in the total hours of work per day and is not
compensable. Hourly community employees will have their
meal period automatically deducted each shift and are
prohibited from performing any compensable work during
a meal break. If an employee’s meal break is interrupted,
the employee must immediately report the interruption to
their manager in order for the employee’s time to be
adjusted as paid time.
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(Employee Handbook at 26-27, Ex. 1 to Ex. A to Defs.’ Resp., Dkt.
No. 28.)
However,
violates
Plaintiffs
the
FLSA
do
merely
not
claim
because
it
that
LaSalle’s
features
an
policy
automatic
deduction. Rather, Plaintiffs claim that regardless of LaSalle’s
written policy, in practice LaSalle was not paying them and other
hourly workers for working through their automatic lunch breaks.
(See, e.g., Ruffolo Decl. ¶ 8 (“I told my supervisors many times
that I was unable to take a lunch break on any given day. Despite
my notifications to my supervisors, my pay was still docked 30
minutes each day.”).) The fact that a company has a written policy
“does
not
defeat
conditional
certification
when
a
plaintiff
provides countervailing evidence” of a practice that violates the
FLSA. See Russell v. Illinois Bell Tel. Co., 575 F. Supp. 2d 930,
935 (N.D. Ill. 2008) (citation omitted). Accordingly, LaSalle’s
argument fails.
Third, LaSalle argues that Plaintiffs cannot establish their
claims using “unsupported assertions” and hearsay. Hearsay is an
out-of-court
statement
offered
for
the
truth
of
the
matter
asserted, and it is generally inadmissible. See Jordan v. Binns,
712 F.3d 1123, 1126 (7th Cir. 2013); F. R. EVID. 802. Plaintiffs’
declarations do contain allegations that would be inadmissible if
they were offered to prove the truth of the matter asserted. (See,
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e.g., Ruffolo Decl. ¶ 12 (“Many employees reported to me that they
too had their pay deducted but were not permitted to take a lunch
break. . .”).) Courts in this District have taken different stances
on whether hearsay is admissible for the purpose of step one
conditional certification. Compare Boyd v. Alutiiq Glob. Sols.,
LLC, No. 11-CV-0753, 2011 WL 3511085, at *5-6 (N.D. Ill. Aug. 8,
2011) (finding that hearsay evidence is inadmissible to support a
motion for conditional certification), with Pieksma v. Bridgeview
Bank Mortg. Co., LLC, No. 15 C 7312, 2016 WL 7409909, at *3 (N.D.
Ill. Dec. 22, 2016) (holding that hearsay evidence is admissible
to support a motion for conditional certification). Courts that
have denied motions to strike hearsay evidence from conditional
certification declarations reason that “a strict application of
the Federal Rules of Evidence does not comport with the court’s
understanding of relative evidentiary burdens imposed under the
two-stage certification approach,” and that the “most reasonable
approach
to
the
respective
evidentiary
burdens
of
the plaintiff during the two stages is one that requires a stricter
standard of proof in the second stage.” Pieksma v. Bridgeview Bank
Mortg. Co., LLC, No. 15 C 7312, 2016 WL 7409909, at *3 (N.D. Ill.
Dec.
22,
2016)
(citing
Howard
v.
Securitas
Sec.
Servs.,
USA
Inc., No. 08 C 2746, 2009 WL 140126, at *3 (N.D. Ill. Jan. 20,
2009)). This Court finds Pieksma persuasive. Given that the Court
- 9 -
need not consider the merits of the claims or engage in factsensitive
inquiries
for
step
one
conditional
certification,
Russell, 575 F. Supp. 2d at 935, the Court will not require a
strict application of the hearsay rule at this stage. However,
Plaintiffs must submit admissible evidence at the second stage of
certification.
2009
Howard,
WL
140126,
at
*3.
Accordingly,
LaSalle’s hearsay argument is unavailing.
Finally,
LaSalle
contends
that
Plaintiffs’
statements
in
deposition disprove their FLSA claims. This argument warrants a
brief background on the extent of discovery in this case. After
Plaintiffs filed their Motion, LaSalle requested limited discovery
for
the
purpose
of
opposing
that
Motion.
The
Court
granted
LaSalle’s request; LaSalle was then able to depose Bonseigneur and
Ruffolo prior to filing their response to Plaintiffs’ motion.
LaSalle attached excerpts from those depositions to its response.
(See Bonseigneur Dep., Ex. C to Defs.’ Resp.; Ruffolo Dep., Ex. D
to Defs.’ Resp.) LaSalle also included two declarations of its own
to its Response. (See Salbego Decl. and Miracle Decl., Ex. A and
B
to
Defs.’
Resp.)
Parties
have
exchanged
limited
written
discovery. (See Bonseigneur Answers to First Interrog., Ex. A to
Defs.’ Resp., Dkt. No. 18; LaSalle’s Answers to First Interrog.,
Ex. 1 to Pls.’ Reply, Dkt. No. 30.) Plaintiffs did not have the
chance to take any of LaSalle’s depositions before filing their
- 10 -
Motion or Reply. LaSalle now claims that Plaintiffs’ depositions
prove
that
their
declarations
contain
false
statements.
And
according to LaSalle, Plaintiffs’ depositions “demonstrate[] that
neither LaSalle’s policy nor its practice is unlawful, and that
Plaintiffs do not know if any other employees worked during lunch
breaks…” (Defs.’ Resp. at 12.)
However, at this initial stage, the Court “does not make
merits determinations, weigh evidence, determine credibility, or
specifically consider opposing evidence presented by a defendant.”
Briggs v. PNC Fin. Servs. Grp., Inc., No. 15-CV-10447, 2016 WL
1043429, at *2 (N.D. Ill. Mar. 16, 2016) (citing Bergman v. Kindred
Healthcare, Inc., 949 F. Supp. 2d 852, 855–56 (N.D. Ill. 2013)).
LaSalle’s arguments regarding Plaintiffs’ deposition testimony are
essentially attacks on Plaintiffs’ credibility as witnesses. Id.
The Court does not assess witness credibility at this stage. Id.
This lenient standard is supplanted by a more rigorous examination
standard only if the plaintiff has been allowed more extensive
discovery. Bergman, 949 F. Supp. 2d at 856; Nicks v. Koch Meat
Co., 265 F. Supp. 3d 841, 850-51 (N.D. Ill. 2017) (declining to
apply more rigorous examination standard because defendants had
not produced a list of potential claimants, parties had not engaged
in discovery with the potential class members, and parties had not
conducted extensive discovery on the “similarly situated” issue).
- 11 -
Plaintiffs have yet to conduct such “extensive discovery” in this
case. To the extent that LaSalle’s evidence suggests that the
alleged policy or practice is not a FLSA violation, the resolution
of that factual dispute is appropriately left to a motion for
decertification—particularly because Plaintiffs have not yet had
a chance to depose any of LaSalle’s witnesses. See Bitner v.
Wyndham Vacation Resorts, Inc., 301 F.R.D. 354, 360 (W.D. Wis.
2014).
Moreover, LaSalle failed to produce a complete record of the
depositions upon which they ask the Court to judge Plaintiffs’
credibility. LaSalle provided only excerpts of the depositions and
cite
to
brief
comments
within
those
excerpts
as
proof
that
Plaintiffs contradicted their declarations. This is inappropriate
and insufficient at this stage. See Koch Meat Co., 265 F. Supp. 3d
at 850 (N.D. Ill. 2017). If the Court were to engage in the sort
of rigorous examination of the facts that LaSalle urges, it would
need a complete record to do so.
Plaintiffs have made the required “modest factual showing” of
a common unlawful policy or practice. See Briggs, 2016 WL 1043429,
at *2. Accordingly, the Court proceeds to the “similarly situated”
inquiry.
- 12 -
B.
Similarly Situated
LaSalle contends that Plaintiffs cannot establish that any
individuals they seek to represent are similarly situated because
their claims require individualized, fact-intensive inquiries.
LaSalle claims that the “particularized inquiry” of whether an
employee worked during lunch and whether the employee received a
deduction
override
is
not
suitable
for
collective
treatment.
(Defs.’ Resp. at 13.) To support this claim, LaSalle cites to
another FLSA automatic meal time deduction case, Walker v. Health
& Hospital Corporation of Marion County, No. 1:15-cv-01978, 2016
WL 7179370 (S.D. Ind. Dec. 9, 2016). Walker held that collective
certification
was
not
appropriate
because
Plaintiffs
did
not
present adequate evidence that they were similarly situated to
other potential plaintiffs. Id. at *12. However, the Walker court
used a different standard—it “collapse[d] the two stages” of FLSA
collective certification analysis because “substantial discovery”
had taken place. Id. at *9. Furthermore, Walker held that the
plaintiffs did not present sufficient evidence because they did
not allege that the defendant employer violated the FLSA by not
compensating employees for that time. Id. Plaintiffs’ declarations
do not suffer from this deficiency. (See, e.g., Ruffolo Decl. ¶ 12
(“I talked to other hourly employees at both locations where I
worked about whether or not they were paid for all hours they
- 13 -
worked. Many employees reported to me that they too had their pay
deducted but were not permitted to take a lunch break or were not
allowed to take the full 30 minutes.”) Thus, Walker is inapposite.
Ultimately, given the factual issues involved, the question of
whether other LaSalle employees were in fact working uncompensated
during
lunch
is
more
appropriately
addressed
at
the
decertification or summary judgment stage. See Koch Meat Co., 265
F. Supp. 3d at 855. Accordingly, this argument fails.
LaSalle
next
argues
that
Plaintiffs
are
not
similarly
situated because “neither Bonseigneur nor Ruffolo held job duties
similar to all other hourly employees nationwide.” (Defs.’ Resp.
at 13-14.) It is true that Bonseigneur and Ruffolo had different
roles with different responsibilities. Ruffolo’s role was largely
focused on resident care, as she was responsible for scheduling
and executing activities for the residents. (Ruffolo Decl. ¶ 3.)
Bonseigneur’s
duties
included
both
resident
care
and
administrative tasks, as she worked first as a caregiver and later
as
an
administrator.
administrator,
(Bonseigneur
Bonseigneur
was
Decl.
able
to
¶ 2.)
And
access
as
an
LaSalle’s
timekeeping system, Paycom. (Bonseigneur Dep. 131:11-14; 145:1149:20.)
presented
She
the
could
enter
proper
waived
paperwork
lunch
and
her
codes
when
employees
Executive
Director,
Defendant Miracle, approved. (Id.) LaSalle insists that these
- 14 -
differences set Plaintiffs too far apart from other hourly workers
to be situated similarly to them.
However, Plaintiffs “do not have to show that the potential
[collective]
members
certification
to
situated
purposes
for
be
have
identical
granted;
of
the
positions
[P]laintiffs
FLSA
even
for
can
conditional
be
though
similarly
there
are
distinctions in their job titles, functions, or pay.” Jirak v.
Abbott Laboratories, Inc., 566 F. Supp. 2d 845, 848-49 (N.D. Ill.
2008). See also Muir v. Guardian Heating & Cooling Services, Inc.,
No. 16 C 9755, 2017 WL 959028, at *8 (N.D. Ill. Mar. 13, 2017)
(“[P]laintiffs at the conditional certification stage need not
show identical positions of potential opt-ins.”). As this Court
has previously noted, there is “wide consensus” in this District
that arguments about dissimilarities in the collective are more
appropriately decided at step two, after the composition of the
class is known and full discovery has taken place. Id. Here, both
Plaintiffs were full-time hourly employees of LaSalle. And LaSalle
admits
that
its
hourly
workers
are
all
subject
to
the
same
automatic lunch deduction. (Defs.’ Resp. at 3.) LaSalle’s rigorous
comparison of day-to-day job responsibilities is inappropriate at
the conditional certification stage. Briggs, 2016 WL 1043429, at
*6 (citation omitted); Petersen v. Marsh USA, Inc., 2010 WL 5423734
at *7 (finding rigorous comparisons of daily responsibilities
- 15 -
inappropriate).
Thus,
the
Court
will
treat
LaSalle’s
hourly
workers as similarly situated despite some variation in their job
duties.
As a final note, LaSalle also argues that Plaintiffs are not
similarly situated to any group because they “submitted false
statements in their Declarations on the threshold issue in this
case.” (Defs.’ Resp. at 14.) LaSalle again cites to an out of
district case using a different legal standard to support this
contention, Luksza v. TJX Companies, Inc., No. 2:11-CV-01359, 2012
WL 3277049, at *9-10 (D. Nev. Aug. 8, 2012). In that case, the
court applied an “intermediate” standard because parties conducted
“extensive
discovery”
certification—defendant
plaintiffs
and
before
had
plaintiffs
the
deposed
had
motion
seven
deposed
for
named
four
of
conditional
and
opt-in
defendant’s
corporate representatives. That case does not apply. As the Court
has
already
explained,
the
lenient
“modest
factual
standard”
applies at the conditional certification stage, Pfefferkorn v.
PrimeSource Health Grp., LLC, No. 17-CV-1223, 2019 WL 354968, at
*2 (N.D. Ill. Jan. 29, 2019), thus Luksza is not persuasive
authority. Accordingly, the Court need not delve into the factual
disputes stemming from Plaintiffs’ depositions at this stage. See
Fields v. Bancsource, Inc., No. 1:14-CV-7202, 2015 WL 3654395, at
*4 (N.D. Ill. June 10, 2015). Plaintiffs’ declarations provide
- 16 -
sufficient
evidence
of
a
company-wide
practice
that
affects
LaSalle’s hourly workers; therefore, they have demonstrated that
Plaintiffs
and
the
opt-in
collective
members
were
“similarly
situated” as to this issue. See Smith v. Family Video Movie Club,
Inc., No. 11 C 1773, 2015 WL 1542649, at *6 (N.D. Ill. Mar. 31,
2015).
C.
Scope of Putative Collective
LaSalle argues that the putative collective must be narrowed
to include only employees reporting to Defendant Miracle, who has
been the Executive Director of LaSalle’s South Barrington location
since May 2017. LaSalle claims that this narrowing is necessary
because
Plaintiffs
failed
to
offer
information
sufficient
to
support FLSA claims at any other location, for any other manager,
and at any time before May 2017. The Court disagrees. Plaintiffs
allege that the automatic lunch deduction policy applies to all
hourly workers across all locations; LaSalle’s own Response and
employee handbook confirm that. (Defs.’ Resp. at 3; Employee
Handbook
at
26-27.)
And
Plaintiffs
have
alleged
sufficient
personal knowledge to support a nationwide scope. By the Court’s
count, Bonseigneur has worked at or with at least four LaSalle
facilities in Illinois (St. Charles, South Barrington, Arlington
Heights, and Vernon Hills), and at least one unspecified Wisconsin
facility. (Bonseigneur Dep. 160:2-162:10.) Bonseigneur also has
- 17 -
personal knowledge of LaSalle’s company-wide policy and practices
as a result of her administrative duties. (Bonseigneur Decl. ¶ 78.) Ruffolo worked at both the St. Charles and South Barrington
locations. (Ruffolo Decl. ¶ 2.) An FLSA action does not need named
plaintiffs from each of the defendant employer’s many offices
nationwide to merit conditional certification. That would defeat
the purpose of a collective action. See Kelly v. Bluegreen Corp.,
256 F.R.D. 626, 631 (W.D. Wis. 2009) (“Where an apparent companywide policy is behind the alleged FLSA violations, the plaintiff
seeking certification for a company-wide class action should not
be required to collect specific violations from each location or
from each state before seeking authorization to provide notice to
employees from all locations.”) Plaintiffs have, between the two
of them, personal knowledge of at least five LaSalle facilities,
as well as LaSalle’s national policies. This is sufficient at this
stage.
LaSalle
once
more
points
to
Plaintiffs’
depositions
as
evidence that Plaintiffs have contradicted their declarations and
undermined their desired scope. Again, these factual disputes are
better left for step two, after discovery is complete and the
members of the collective are known. See Koch Meat Co., 265 F.
Supp. 3d at 857; Nehmelman v. Penn Nat. Gaming, Inc., 822 F. Supp.
2d 745, 751 (N.D. Ill. 2011) (at the second stage, employer
- 18 -
defendant can move to decertify the collective or divide the class
into sub-collectives).
However, the Court will narrow one aspect of Plaintiffs’
putative collective definition. See Smith, 2015 WL 1542649, at *7
(modifying FLSA collective definition); Muir (same); Walker v.
Honghua Am., LLC, 870 F. Supp. 2d 462, 472 (S.D. Tex. 2012) (noting
a district court “has the power to modify an FLSA collective action
definition
on
its
own.”)
Plaintiffs
proposed
the
following
definition for their FLSA collective: all persons who have been
employed by LaSalle as hourly wage earning (i.e., non-salaried)
employees for the three years preceding the issuance of the notice.
(Pls. Mot. at 3, 8.) This definition is insufficient, as it does
not
give
any
indication
of
the
common
unlawful
policy
that
Plaintiffs are alleging. All putative opt-in members must still be
victims of the same common policy or policies; otherwise, the
“proposed class is overbroad.” Muir at *4 (citing DeMarco v. Nw.
Mem’l Healthcare, No. 10 C 397, 2011 WL 3510905, at *4 (N.D. Ill.
Aug. 10, 2011)). Although Plaintiffs’ Complaint vaguely accuses
LaSalle of “time shaving” and adjusting the clock-in and clockout times for the purpose of paying hourly employees less, those
facts are not alleged in Plaintiffs’ declarations in support of
FLSA conditional certification. Plaintiffs’ current evidentiary
submissions
are
limited
to
FLSA
- 19 -
violations
that
result
from
LaSalle’s
automatic
meal
deduction
policy.
Thus,
the
Court
modifies the proposed collective as follows:
“All persons employed by LaSalle as hourly wage earning
(i.e., non-salaried) employees for the three years
preceding the issuance of the notice who were shorted
wages based on LaSalle’s lunch deduction policy.”
D.
Notice
LaSalle raises several concerns about Plaintiffs’ proposed
notice
form.
LaSalle
suggested,
and
Plaintiffs
agreed,
that
parties should meet and discuss potential revisions. Given this
agreement, the Court sees no need to rule on Plaintiffs’ proposed
notice form. Accordingly, Plaintiffs’ requests for approval of
their proposal notice form, and for authorization to send such
notice to all potential opt-in plaintiffs, are denied without
prejudice.
IV.
For
the
reasons
stated
CONCLUSION
herein,
Plaintiffs’
Motion
(Dkt.
No. 14) is granted in part and denied in part as follows:
(1)
Plaintiffs
The Court conditionally certifies a collective action by
and
similarly
situated
members
of
the
collective
pursuant to 29 U.S.C. § 216(b), defined as:
“All persons employed by LaSalle as hourly wage earning
(i.e., non-salaried) employees for the three years
preceding the issuance of the notice, who were shorted
wages based on LaSalle’s lunch deduction policy.”
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(2)
The Court orders LaSalle to produce to Plaintiffs in a
usable electronic format the names, last known mailing address,
email address, telephone number, and dates of employment of all
putative collective members to be notified. LaSalle shall tender
this information to Plaintiffs on or before March 22, 2019.
(3)
The Court denies Plaintiffs’ proposed notice form, and
request for authorization to send notice to all potential opt-ins,
without prejudice. Parties shall file either an agreed notice form,
or short briefing (five pages or less) to the Court on the matters
on which they cannot agree, on or before March 22, 2019.
IT IS SO ORDERED.
Dated: 2/28/2019
Harry D. Leinenweber, Judge
United States District Court
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