Harvey et al v. AB Electrolux, Inc
Filing
91
MEMORANDUM OPINION AND ORDER: Granting 79 Motion to Proceed as a Collective Action and Facilitate Notice Under 29 U.S.C. §216(b): See text of Order for further instructions. Signed by Judge Mark W Bennett on 03/09/12. (kfs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
NICK HARVEY, CINDY STURTZ, and
DAVID AUSBORN, Individually and on
behalf of all others similarly situated,
Plaintiffs,
No. C 11-3036-MWB
vs.
AB ELECTROLUX, ELECTROLUX
HOME PRODUCTS, INC.,
ELECTROLUX HOME PRODUCTS
NORTH AMERICA, and
ELECTROLUX HOME CARE
PRODUCTS, INC.,
MEMORANDUM OPINION AND
ORDER REGARDING PLAINTIFFS’
MOTION TO PROCEED AS A
COLLECTIVE ACTION AND
FACILITATE NOTICE UNDER 29
U.S.C. § 216(b)
Defendants.
____________________
This case is a putative collective action pursuant to the Fair Labor Standards Act
(FLSA), 29 U.S.C. § 201 et seq., and a putative class action under Rule 23 of the Federal
Rules of Civil Procedure pursuant to the Iowa Wage Payment Collection Law (IWPCL),
IOWA CODE CH. 91A. The claims are premised on alleged failure to pay hourly, nonexempt “production employees” or employees in “other similarly titled positions” at the
1
defendants’ now-closed plant in Webster City, Iowa, for time or overtime for donning
protective equipment and preparing for work before their shifts began and for time spent
and expenses for cleaning and maintaining some of their safety equipment outside of the
work place. The plaintiffs filed their original Complaint (docket no. 1) on August 3, 2011,
1
The defendants assert that the Webster City Plant closed March 31, 2011.
and their First Amended Class Action Complaint, Representative Collective Action
Complaint, And Jury Demand (docket no. 50) on September 13, 2011. The defendants
filed an Answer And Defenses (docket no. 59) on October 7, 2011, denying the plaintiffs’
FLSA and IWPCL claims and asserting some twenty-two affirmative defenses.
This case is now before me on the plaintiffs’ December 14, 2011, Motion To
Proceed As A Collective Action And Facilitate Notice Under 29 U.S.C. § 216(b) (docket
no. 79). In that motion, the plaintiffs ask me to (1) conditionally certify this case as a
§ 216(b) collective action; (2) require the defendants to produce a computer-readable data
file containing the names, addresses, and telephone numbers of potential opt-in members
so that notice may be issued; and (3) authorize notice in the form proposed by the plaintiffs
to all similarly-situated persons, defined as all individuals who were employed by the
Electrolux Webster City Plant in the State of Iowa as hourly paid, non-exempt, production
employees or other similarly titled positions at any time within the last three years before
the filing of their motion to the present to inform them of their right to opt in to this
lawsuit. That motion was supported by a brief, declarations of the three named plaintiffs,
declarations of six other former hourly employees of the Electrolux Webster City Plant,
the declaration of a former “area manager” who oversaw 3 supervisors and 30 to 40
production workers at the Webster City Plant, the declaration of a former “quality control
supervisor” who oversaw approximately 300 production workers at the Webster City
Plant, a proposed Notice Of Collective Action Lawsuit, and a May 31, 2006,
Memorandum from the U.S. Department of Labor following the United States Supreme
Court’s decision in IBP v. Alvarez, 126 S. Ct. 514 (2005).
The plaintiffs argue that, since the filing of their lawsuit, even without notice
authorized by the court, almost 1,000 additional production employees have filed “opt-in
consent forms” to participate in this action. The plaintiffs believe that the total number of
2
putative collective action members is approximately 1,500. The plaintiffs assert that they
have met the minimal showing required to demonstrate that there are additional similarlysituated employees who are victims of a common illegal pay policy or practice, where
testimony from the named and opt-in plaintiffs describes nearly identical experiences with
and observations of production workers having to perform the same unpaid work,
including donning and doffing of personal protective equipment (PPE) and home washing
of armguards and gloves, and a common scheme by the defendants to fail to record,
compensate, or otherwise account for the time worked by the putative collective action
members in donning, doffing, cleaning, and maintaining PPE. They argue that the merits
of their claims are not at issue at this preliminary stage of conditional certification, only
whether they have made the necessary showing that there are potentially similarly-situated
employees. They argue that the putative collective action members must be notified before
the statute of limitations runs on their claims. They also argue that their proposed Notice
2
and Opt-In Consent Forms are adequate.
The defendants filed a Resistance To Plaintiffs’ Motion To Proceed As A Collective
Action And Facilitate Notice Pursuant To 29 U.S.C. § 216(b) (docket no. 84) on January
30, 2012. Their Resistance is accompanied by a supporting brief, a declaration of a
former hourly employee concerning different practices in the production lines and support
departments, a declaration of a former “labor relations manager” in the defendants’ plant
concerning the collective bargaining agreement covering plant employees and the various
positions occupied at various times by the persons providing declarations on behalf of the
plaintiffs, and a proposed modified Notice Of Collective Action Lawsuit.
2
No sample Opt-In Consent Form was attached to the plaintiffs’ motion. However,
signed copies of a Consent To Join Collective Action have been submitted with various
Notices Of Consent Filing. See docket nos. 3-25, 30-49, 68-73.
3
The defendants argue that any collective action conditionally certified should be
narrowed to exclude “donning” claims as to employees of the maintenance, tool and die,
press, receiving inspection, and dimensional inspection departments, because employees
in those support departments did not routinely don appropriate PPE until after they were
on the clock and had received daily job assignments; to exclude any “pre-shift” claims,
because there was no common policy requiring employees to perform pre-shift tasks at
their work stations and no evidence that employees were required to wash sleeves or gloves
at home, rather than doing so by choice, because the company provided clean sleeves and
gloves at all times to employees who wanted them; and to exclude employees who worked
at the plant more than two years ago, because there is not a scintilla of evidence of any
willful conduct that would extend the statute of limitations period from two years to three.
The defendants argue that, to the extent that the plaintiffs seek some kind of tolling of the
statute of limitations, tolling is inappropriate, because 29 U.S.C. § 256(b) states when the
case commences as to opt-in plaintiffs. The defendants also argue that the plaintiffs’
proposed Notice is defective, in that it does not indicate that the court takes no position on
the merits of the collective claims, it does not properly restrict the putative collective
action members in the way that they argue, just above, and it indicates that the persons
receiving the notice “are” rather than “may be” similarly situated to the named plaintiffs.
The defendants also argue that they should not be required to produce telephone numbers
of potential plaintiffs, at least until mail is returned as undeliverable, to avoid improper
solicitation of opt-in plaintiffs.
The plaintiffs filed a Reply (docket no. 89) on February 14, 2012, accompanied by
additional declarations, some from former employees in the support departments that the
defendants contend should be excluded from the Notice, and a modified Notice. In their
Reply, the plaintiffs assert that the defendants are attempting to inject factual disputes
4
about the merits into what should be a preliminary and lenient inquiry into whether a
collective action should be conditionally certified that does not address the merits. They
also point out that the defendants have effectively conceded that notice is appropriate to
most of the employees that the plaintiffs have identified. They also point out that the
FLSA requires payment for hours that an employee is “suffered” or “permitted” to work,
not just hours the employer “required” the employee to work. Similarly, they argue that
they are not required to demonstrate “willfulness” at this stage of the proceedings and that
limiting notice to employees who worked only in the last two years may improperly
preclude viable claims if willfulness can ultimately be shown. While the plaintiffs concede
that it is appropriate to modify the Notice to indicate that the court takes no position on the
merits and that the recipients “may be” similarly situated to the named plaintiffs, they
contend that the Notice is otherwise adequate. They also assert that tolling of the statute
of limitations is appropriate to preclude the defendants from cynically prolonging matters
by refusing to consent to notice of a collective action, thus causing some potential plaintiffs
to lose eligibility. They also argue that contact telephone numbers should be provided to
ensure that all putative collective action members are promptly located and notified.
In mid-2008, in Bouaphakeo v. Tyson Foods, Inc., 564 F. Supp. 2d 870, 890-94
(N.D. Iowa 2008), I addressed in some detail the legal standards for collective actions
under 29 U.S.C. § 216(b) and, more specifically, the requirements for conditionally
certifying such a collective action. I noted that the Eighth Circuit Court of Appeals had
not yet elaborated on what “similarly situated” means, for purposes of a collective action
and authorization of notice, see id. at 890, and I now note that the Eighth Circuit Court
of Appeals still does not appear to have done so. I also note that the parties’ statements
of the applicable standards are essentially consistent with each other and with my statement
5
of those standards in Bouaphakeo. Thus, I will turn directly to application of those
standards to the question of conditional certification of a collective action in this case.
In light of the numerous declarations offered in support of conditional certification,
I conclude that the plaintiffs have made more than mere allegations to support their
contention that similarly-situated potential plaintiffs exist. See id. at 892. Evidence that
almost 1,000 putative collective action members have already opted in is persuasive
evidence that the defendant employer should be put to the expense and effort of notice to
a conditionally-certified class of claimants. See id. & id. at 896. The various declarations
are also adequate evidence of a widespread discriminatory plan, as well as evidence that
a manageable class exists. See id. I conclude that, on the present showing, conditional
certification is appropriate, because the plaintiffs have offered more than substantial
allegations that the putative collective action members were similarly-situated and were
together the victims of a single decision, policy, or plan. Id. & id. at 896-97.
I also conclude that the defendants’ attempts to whittle away at the scope of the
conditionally-certified class all involve precisely the sort of challenges to the merits that
are inappropriate at either the conditional certification stage or the final certification stage.
See id. at 893. Nevertheless, I also note that modification of the Notice to indicate that
recipients “may be” members of a class ultimately entitled to relief and that any relief may
be limited to a two-year period prior to filing of the opt-in adequately address the
defendants’ concerns about the scope and time frame of any class members that are
ultimately entitled to relief. Similarly, I agree with the defendants that the Notice must
indicate that the court has made no determination, and takes no position on, the merits of
the class’s or any putative members’ claims, not simply that “[t]he Court has yet to make
any determination on the merits,” as stated in the plaintiffs’ modified Notice, Exhibit J,
Notice, § II.
6
I find it necessary to comment on only two more issues.
The first is the issue of tolling of the statute of limitations. I do not believe that the
plaintiffs’ original motion or either version of the Notice that they provided actually
indicates that I must make a determination at this time on whether tolling of the statute of
limitations in some respect is appropriate. Until and unless an adequate request and
showing that the statute of limitations should be tolled are made, 29 U.S.C. § 256 governs
when the action commences as to opt-in plaintiffs. Thus, while notice may properly issue
to persons employed at the defendants’ Webster City Plant in appropriate positions within
the last three years before the filing of the plaintiffs’ motion for conditional certification
to the present, that time frame does not necessarily coincide with the statute of limitations
period for viable claims.
The second remaining issue, whether the defendants must be required to provide
telephone numbers as well as other contact information for putative collective action
members, is one that I find I must address on the merits. I note that some district courts
in the Eighth Circuit have, even over the defendants’ objections, required defendants in
putative collective actions to provide telephone numbers of putative collective action
members to facilitate notice, at least where adequate justifications are offered for getting
such information (usually to facilitate contact with potential class members who have
moved, but also to verify and organize opt-in forms), where the telephone numbers are
strictly a supplement to notice by first-class mail, where there are prohibitions on improper
use of the telephone numbers, for example, for purposes of solicitation of opt-ins, and
where a protective order to protect confidentiality of the information is in place. See,
e.g., Nobles v. State Farm Mut. Auto. Ins. Co., 2011 WL 5563444, *2 (W.D. Mo. Nov.
15, 2011) (ordering disclosure of such information); Resendi-Ramirez v. P & H Forestry,
L.L.C., 544 F. Supp. 2d 785, 785-87 (W.D. Ark. 2008) (same). On the other hand, some
7
courts have refused to allow disclosures of telephone numbers. See, e.g., Littlefield v.
Dealer Warranty Servs., L.L.C., 679 F. Supp. 2d 1014, 1019 (E.D. Mo. 2010) (denying
disclosure of such information without further order of the court); Martinez v. Cargill
Meat Solutions, 265 F.R.D. 490, 501 (D. Neb. 2009) (same). I recognize that the need
for alternate contact information for putative collective action plaintiffs may be more
urgent in a case in which the plant at which the putative plaintiffs all worked has closed,
and some share of the former workforce has, presumably, dispersed in pursuit of other
employment. Nevertheless, I think it is at least as likely that first-class mail forwarding
will reach relocated putative plaintiffs as a “stale” telephone number will be. Moreover,
I believe that there are legitimate concerns with improper solicitation, even unintentional,
and privacy that counsel against providing telephone numbers without some showing that
notice by first-class mail is actually insufficient. Here, where approximately two-thirds
of the anticipated collective action members have already provided opt-in forms, there
seems to be little doubt that notice of the lawsuit is already getting out. I will only require
the defendants to provide names and addresses of putative collective action members at this
point, but I will not require disclosure of telephone numbers without a more specific and
particularized showing that notice by first-class mail has been ineffective.
THEREFORE, the plaintiffs’ December 14, 2011, Motion To Proceed As A
Collective Action And Facilitate Notice Under 29 U.S.C. § 216(b) (docket no. 79) is
granted, as follows:
1.
This action is conditionally certified as a § 216(b) collective action;
2.
The defendants shall produce a computer-readable data file containing the
names and addresses of putative opt-in members so that notice may be issued; and
8
3.
Notice by the plaintiffs, in the form proposed in the plaintiffs’ Exhibit J, as
modified herein, to notify putative collective action members of their right to opt in to this
lawsuit, is authorized to the following:
All individuals who were employed by the Electrolux Webster
City Plant in the State of Iowa as hourly paid, non-exempt,
production employees or other similarly titled positions at any
time between December 14, 2008, and December 14, 2011.
IT IS SO ORDERED.
DATED this 9th day of March, 2012.
__________________________________
MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?