Knaak et al v. Armour-Eckrich Meats LLC

Filing 61

ORDER Adopts Magistrate Judge's 44 Report and Recommendation; denies defendant's 14 Motion to Dismiss Count IV; grants plaintiffs' 30 Motion to Certify Conditional Class (Written Opinion). Signed by Judge John R. Tunheim on January 8, 2014. (DML)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
CAROL KNAAK, WANDA FIRCHAU, and
KAY OLIVER, all individually and on behalf
of others similarly situated,

Civil No. 13-829 (JRT/JJK)

Plaintiffs,
MEMORANDUM OPINION
AND ORDER

v.
ARMOUR-ECKRICH MEATS LLC,
Defendant.

James H. Kaster and David E. Schlesinger, NICHOLS KASTER, PLLP,
80 South Eighth Street, Suite 4600, Minneapolis, MN 55402; Steven R.
Sunde, SUNDE, OLSON, KIRCHER & ZENDER, PLC, Post Office
Box 506, St. James, MN 56081 for plaintiffs.
L. Dale Owens and Eric R. Magnus, JACKSON LEWIS LLP, 1155
Peachtree Street N.E., Suite 1000, Atlanta, GA 30309; D. Christopher
Lauderdale, JACKSON LEWIS LLP, 55 Beattie Place, Suite 800,
Greenville, SC 29601; and David J. Duddleston, JACKSON LEWIS PC,
225 South Sixth Street, Suite 3850, Minneapolis, MN 55402, for
defendant.

Plaintiffs, on behalf of themselves and all others similarly situated, bring this
putative collective and class action against their employer, Armour-Eckrich Meats, LLC,
(“Armour”), claiming that Armour failed to pay employees for time employees worked in
violation of the Fair Labor Standards Act (“FLSA”), the Minnesota Fair Labor Standards
Act, and in breach of a contract between the parties. Two motions are before the Court.
First, Armour moves to dismiss plaintiffs’ breach of contract claim and objects to United

28

States Magistrate Judge Arthur Boylan’s recommendation to deny the motion. Second,
plaintiffs move for conditional certification of a collective action under the FLSA. The
Court will deny Armour’s motion to dismiss and grant plaintiffs’ motion for conditional
class certification.

BACKGROUND
Armour specializes in processing and preparing meat proteins and operates a food
processing facility in St. James, Minnesota. (Amended Compl. (“Compl.”) ¶ 3, May 10,
2013, Docket No. 13.) Plaintiffs are or have been hourly employees at Armour’s facility
in St. James within the last three years.

(Compl. ¶ 5.)

Plaintiffs allege that they

performed unpaid work before and after clocking in and out for shifts and meal breaks,
including donning and doffing protective gear and waiting in line to clock in, for a total
of approximately fifteen minutes of unpaid work time per day per person. (Id. ¶¶ 8-9.)
Plaintiffs also allege generally that they perform unpaid work at the start and end of their
work shifts, for example, because Armour uses the shift start time to calculate wages
even if plaintiffs clocked in before the start time, but uses the clock-in time if plaintiffs
clock in after the start time. (Id. ¶¶ 13, 16-17.)
With their motion for conditional certification of a collective action class,
plaintiffs have submitted declarations from nine current and former Armour employees at
the St. James facility. (See Aff. of David E. Schlesinger, Exs. A-I, Sept. 6, 2013, Docket
No. 34.) The declarants include both employees who work on the production line and
other employees, such as a blade sharpener and inspectors. The declarations include

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several substantially similar or nearly identical allegations. All declarants allege that they
were told they need to begin their scheduled shifts with all the required sanitary clothing
and safety gear already on and that they need to arrive early for their scheduled shifts.
(Exs. A-I, ¶ 4.) The declarations of all current employees (and some former employees,
including non-production line employees) also state that a notice recently posted at the St.
James facility states that “employees are permitted to punch in no more than five minutes
before shift start.” (Id. ¶ 5.) All declarants also state that they are required to put on
certain clothing and gear and that they are not paid for that work. (Id. ¶ 6.)

All

declarants state that they are required to doff required clothing and safety gear after
clocking out for their lunch break and that they are required to again don the required
clothing and gear before clocking back in, such that much of their 30 minute lunch break
is spent donning and doffing. (Id. ¶ 7.) All employees estimate that the unpaid work
they perform results in them working more than forty hours per week. (Id. ¶ 8.)
With regard to the breach of contract claim (Count IV), plaintiffs allege that
Armour “entered into an employment contract, express or implied, with Plaintiffs and
class members, under which Plaintiffs and class members were to be paid at a certain
hourly rate for the work they performed for the benefit of Defendant Armour” and that
Armour “made this promise to Plaintiffs and class members on many occasions,
including, but not limited to, on or around Plaintiffs[’] and class members’ respective
dates of hire.” (Compl. ¶¶ 55-56.) Plaintiffs further allege that “Plaintiffs and class
members accepted Defendant Armour’s offer to compensate them at a certain hourly rate
for all work performed each time they reported to the St. James facility and performed
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their job duties,” but that Armour “breached this contract when it failed to pay Plaintiffs .
. . for the time they spend/spent donning and doffing the required protective gear.” (Id.
¶¶ 57-58.)

DISCUSSION
I.

MOTION TO DISMISS
Armour moves to dismiss plaintiffs’ breach of contract claim for failure to state a

claim upon which relief can be granted. (See Mot. to Dismiss, May 24, 2013, Docket
No. 14.)

The Magistrate Judge recommended denying this motion (Report and

Recommendation (“R&R”), Oct. 18, 2013, Docket No. 44) and Armour objects (Obj. to
R&R, Nov. 1, 2013, Docket No. 45).

A.

Standard of Review

Upon the filing of a report and recommendation by a magistrate judge, a party
may “serve and file specific written objections to the proposed findings and
recommendations.” Fed. R. Civ. P. 72(b)(2); accord D. Minn. LR 72.2(b). “The district
judge must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to.” Fed. R. Civ. P. 72(b)(3).
On a motion to dismiss brought under Rule 12(b)(6), the Court must “accept all
facts pled by the nonmoving party as true and draw all reasonable inferences from the
facts in favor of the nonmovant.” Waldron v. Boeing Co., 388 F.3d 591, 593 (8th Cir.
2004). Pursuant to Federal Rule of Civil Procedure 8(a)(2), a complaint must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.” This
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requires a plaintiff to allege “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plaintiffs must
“plead[] factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has acted unlawfully.” Farnam St. Fin.,
Inc. v. Pump Media, Inc., Civ. No. 09–233, 2009 WL 4672668, at *3 (D. Minn. Dec. 8,
2009) (quoting Iqbal, 556 U.S. at 678). Facts pled which “give the defendant fair notice
of what the claim is and the grounds upon which it rests” meet the 12(b)(6) standard.
Twombly, 550 U.S. at 555 (alteration and internal quotations omitted)).

B.

Breach of Contract Claim

Under Minnesota law, plaintiffs must demonstrate four elements to show a breach
of contract: (1) a contract was formed, (2) plaintiffs performed any required conditions
precedent, (3) defendant materially breached the contract, and (4) plaintiffs suffered
damages as a result.1 See Gen. Mills Operations, LLC v. Five Star Custom Foods, Ltd.,
789 F. Supp. 2d 1148, 1155 (D. Minn. 2011) (citing Parkhill v. Minn. Mut. Life Ins. Co.,
174 F. Supp. 2d 951, 961 (D. Minn. 2000)).

1

The Court recognizes that it is not settled under Minnesota law whether a plaintiff needs
to plead damages in order to state a claim for a breach of contract, see Park Nicollet Clinic v.
Hamann, 808 N.W.2d 828, 833 n.5 (Minn. 2011), but because plaintiffs plainly pled damages
here the Court need not address this open question.

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Armour argues in its motion to dismiss that plaintiffs fail to allege sufficient facts
about the alleged contract, specifically as to what a representative of Armour actually
offered to plaintiffs and what tasks Armour promised to pay for, and that without those
specific details, plaintiffs’ allegations are conclusory and insufficient. The Magistrate
Judge rejected Armour’s arguments, finding that, although “[p]laintiffs’ allegations may
not be ‘as specific as they could be,’” they adequately alleged the formation of a contract.
(R&R at 5 (quoting Chambers v. Travelers Cos., Inc., Civ. No. 08-5947, 2009 WL
873124 at *5 (D. Minn. Mar. 30, 2009)).)

The Magistrate Judge concluded that

plaintiffs’ allegations that Armour promised to pay them a certain hourly rate for all
hours worked and made the promise on many occasions were sufficient allegations of an
offer, rejecting Armour’s arguments that they failed because they did not include the
specific identity of the promisor or the exact date of promise. Because the plaintiffs also
adequately alleged their acceptance of the offer, the Magistrate Judge concluded that
plaintiffs adequately alleged the formation of a contract.2
Armour now objects to the conclusions of the R&R, again raising its argument that
plaintiffs fail to adequately allege that Armour promised to pay them for time spent
donning and doffing, rather than promising to pay them simply for time worked. Armour
argues that in order to state a claim for breach of contract, “the plaintiff must specifically
allege facts showing that the defendant actually promised that it would provide [the

2

With regard to the remaining three elements of a contract claim, the Magistrate Judge
noted that Armour did not challenge those elements and concluded that plaintiffs adequately
stated them. (R&R at 7.)

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specific] money or benefit” that plaintiffs claim to have been deprived of. (Obj. to R&R
at 6 (emphasis omitted).) Essentially, Armour’s argument appears to be that in order to
state a claim for breach of contract for failure to pay for time spent donning and doffing,
plaintiffs must allege that Armour promised to pay plaintiffs for time spent donning and
doffing specifically, rather than simply for time worked.
The level of specificity required in allegations of breach of contract will typically
depend on how plausible it is that the parties to the contract understood a specific type of
activity to be encompassed by a certain contract term. For example, the parties here do
not presently dispute that working on the production line constituted “work” for which
Armour promised to pay plaintiffs, nor that plaintiffs’ time spent driving from their
homes to the St. James facility did not constitute “work” for which Armour promised to
pay plaintiffs. But where plaintiffs allege that an activity was intended to constitute work
under the employment agreement between plaintiffs and Armour, whether that allegation
is sufficient for success on a breach of contract claim is a matter of contract
interpretation, rather than a failure to state a claim. If, under the alleged contract term
that plaintiffs were to be “paid at a certain hourly rate for the work performed for the
benefit of Defendant Armour,” it is plausible that the parties considered time spent
donning and doffing to be “work performed for the benefit of Defendant Armour,” then
plaintiffs’ breach of contract allegations are sufficient as a matter of law. (See Compl.
¶ 55.)
The Court concludes that it is plausible that the parties considered time spent
donning and doffing to be compensable work under the terms of Armour’s promise to
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pay plaintiffs for time worked. It is reasonable, and certainly plausible, for employees to
expect that time spent putting on specialized safety equipment, which is required by the
employer, while on the premises of their employer, will be compensated.3 Thus, for the
purposes of notice pleading under Federal Rule of Civil Procedure 8, plaintiffs have
adequately pled that there was a contract, under which they were promised to be paid for
time worked (which plausibly includes donning and doffing), which Armour breached by
failing to pay them for time worked.
The fact that plaintiffs’ allegations do not include an allegation that Armour
promised to pay plaintiffs specifically for time spent donning and doffing does not render
the breach of contract pleadings inadequate. Armour cites several cases that it believes
indicate that a claim for breach of contract must plead specifically that a contract
included terms providing for the specific benefit that plaintiffs claim to have been
deprived of. But the cases Armour cites to do not squarely support this proposition.
Rather, many of them involve complaints that were woefully deficient or that
inadequately alleged that there was a contract at all.4
3

Several courts have held that whether or not an employment contract for work
performed includes donning and doffing time is a factual question which precludes any judgment
as a matter of law. See Abadeer v. Tyson Foods, Inc., Civ. No. 09-00125, 2013 WL 5498190, at
*20 (M.D. Tenn. Oct. 3, 2013) (denying employer’s motion for summary judgment on contract
claim, where “[t]he problem, by Tyson’s lights, is that the parties understand the term ‘all hours
worked’ differently, which precludes a meeting of the minds as to this essential element of the
contract”); Gatewood v. Koch Foods of Miss., LLC, 569 F. Supp. 2d 687, 702 (S.D. Miss. 2008)
(in a donning and doffing case, there was a “genuine issue of fact that donning and doffing of
sanitary equipment constitutes ‘work’ under the FLSA”).
4

Armour cites T.B. Allen & Associates, Inc. v. Euro-Pro Operating LLC, Civ. No. 113479, 2013 WL 64605 (D. Minn. Jan. 4, 2013), but that case generally supports the plaintiffs’
(Footnote continued on next page.)

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Rather, courts in this district have consistently deemed pleadings comparable to
those here to state breach of contract claims. In McCauley v. Ocwen Federal Bank, FSB,
Civ. No. 09-3183, 2010 WL 760438 (D. Minn. Feb. 26, 2010), the court held that a claim
____________________________________
(Footnote continued.)

position. There, the plaintiff alleged that it rejected a proposed change to its contract – an
$800,000 cap on commission payments and a new and reduced structure that would further
reduce commission payments. Id. at *3. The Court found that, even though “T.B. Allen could
have been more specific in its complaint about the methods of its rejections and the subsequent
breaches of Euro–Pro . . . pleadings can survive a motion to dismiss even when allegations are
not as specific as they could be.” Id. (internal quotations omitted).
Armour also relies on cases where the pleadings were demonstrably less adequate than
those here. In Johnson v. Homeownership Preservation Foundation, Civ. No. 09-600, 2009 WL
6067018 (D. Minn. Dec. 18, 2009) report and recommendation adopted, 2010 WL 1050333
(D. Minn. Mar. 18, 2010), the plaintiff alleged that “a contract was established on July 8, 2008,
and that in July 2008, HPF informed her that it could assist her in avoiding foreclosure and
finding the resources for refinancing or modifying her loan.” Id. at *7. The Court concluded
that, because these allegations did “not set forth the terms of any offer made by HPF to Johnson,
much less who made the offer or when and how it was communicated to her,” it was “impossible
for this Court to determine whether a contract was created, the contents of the contract or
whether HPF breached any of the terms of the contract.” Id. (citing Motley v. Homecomings
Fin., LLC, 557 F. Supp .2d 1005, 1012-13 (D. Minn. 2008)). But those allegations were sparser
than those here – the plaintiff in Johnson alleged merely that a contract was established, but
nothing about the terms of the contract – leading the court to conclude that they merely set out
“‘an unadorned, the-defendant-unlawfully-harmed-me accusation.’” Id. at *8 (quoting Iqbal,
556 U.S. at 677). Similarly the allegations in Motley, 557 F. Supp. 2d 1005, are less specific
than those here. See id. at 1013 (“Plaintiffs have not attached the allegedly violated contracts to
the Complaint, nor have they pleaded the terms of those contracts, rendering it impossible to
discern precisely how Homecomings allegedly has breached them. . . . There are no facts pleaded
in the Complaint, however, indicating that the imposition of such fees somehow violated
Brooks’s mortgage-loan documents. He simply asserts that such fees were ‘unnecessary’” and
were imposed without notice or explanation, but he fails to cite any contract term that
Homecomings purportedly breached when such fees were charged.”). Here plaintiffs allege the
basic elements of a contract – that Armour promised to pay them for work performed and made
the promise at the outset of their employment, such that Armour has clear notice of what the
breach claim is against it.
Only DeSilva v. North Shore-Long Island Jewish Health Systems, Inc., Civ. No. 10-1341,
2012 WL 748760, at *8 (E.D.N.Y. Mar. 7, 2012), supports Armour’s position. The Court
declines to apply the reasoning used by that court, as it appears to unnecessarily heighten the
pleading standards for breach of contract claims required by Rule 8.

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for breach of contract was sufficiently pled, despite defendants’ arguments that the
pleadings were legal conclusions rather than factual assertions:
Defendants further argue that McCauley makes a “legal assertion rather
than a factual allegation” when he claims that the Forbearance Agreement
required any assignee to service the loan in a manner similar to the HUD
Forbearance Agreement. But the complaint does not make a legal
assertion; it states that defendants did not adhere to the terms of the
agreement that transferred the mortgage from HUD to defendants. If that
agreement stated that defendants were required to comply with certain
terms of the Forbearance Agreement between McCauley and HUD, such as
the condition that McCauley make payments of $400 per month, then it is
plausible that defendants breached that agreement by demanding that
McCauley make $5000 payments. . . . McCauley’s claim for breach of
contract is plausible on its face, and the complaint includes sufficient
factual matter that, accepted as true, states a claim to relief.
Id. at *5 (alterations omitted) (internal citations omitted).

Similarly here, if the

agreement’s term “the work they performed” was intended by the parties to include time
spent donning and doffing the required safety gear, then it is plausible that Armour
breached the agreement by failing to pay plaintiffs for that time. See also Ikechi v.
Verizon Wireless, Civ. No. 10-4554, 2011 WL 2118797, at *6 (D. Minn. Apr. 7, 2011)
(“[T]hough Ikechi’s prolix complaint is not artful, it contains sufficient support for
Ikechi’s breach of contract claim, namely, that Verizon overcharged and inaccurately
billed Ikechi.”), report and recommendation adopted, 2011 WL 2118791 (D. Minn.
May 25, 2011). Accordingly, the Court concludes that plaintiffs’ allegations sufficiently
state a claim for breach of contract and will deny Armour’s motion to dismiss Count IV.

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II.

MOTION TO CERTIFY CONDITIONAL CLASS
Plaintiffs seek to certify a conditional class for a collective action under the FLSA,

29 U.S.C. § 216(b). Armour does not object generally to conditional certification, but
rather disputes the scope of the class and the scope of the claims. Armour argues that the
class should be limited to only production-line employees and that the claims should be
limited to uncompensated time spent donning and doffing rather than for any
uncompensated time worked.

A.

Standard for Class Certification Under 29 U.S.C. § 216(b)

The FLSA permits an employee alleging wage and hour violations to assert claims
on behalf of himself “and other employees similarly situated” as a collective action. 29
U.S.C. § 216(b). To determine whether a case should be certified under the FLSA, courts
in this district typically employ a two-step process. First, the Court determines whether
the class should be conditionally certified for the purposes of notification and discovery.
Burch v. Qwest Commc’ns Int’l, Inc., 500 F. Supp. 2d 1181, 1186 (D. Minn. 2007)
(quoting Dege v. Hutchinson Tech., Inc., Civ. No. 06-3754, 2007 WL 586787, at *1
(D. Minn. Feb. 22, 2007)). At this stage, the plaintiffs need establish only that they are
similarly situated, or a “‘colorable basis for their claim that the putative class members
were the victims of a single decision, policy, or plan.’” Id. (quoting Dege, 2007 WL
586787, at *1). After discovery, the court conducts the second-stage inquiry, which
involves considering “‘the extent and consequences of disparate factual and employment
settings of the individual plaintiffs, the various defenses available to the defendant that

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appear to be individual to each plaintiff, and other fairness and procedural
considerations.’” Id. (quoting Dege, 2007 WL 586787, at *2).
The first stage is often referred to as the “notice stage” because the inquiry focuses
on “whether notice of the action should be given to potential class members.” Loomis v.
CUSA LLC, 257 F.R.D. 674, 676 (D. Minn. 2009) (internal quotations omitted). At this
notice stage, “[t]he court does not make any credibility determinations or findings of fact
with respect to contrary evidence presented by the parties.” Dege, 2007 WL 586787, at
*2. Rather, “[i]n determining whether plaintiffs have met their initial burden [to warrant
conditional certification of a collective action under § 216(b)], courts rely on the
complaint and any affidavits that have been submitted.” Sjoblom v. Charter Commc’ns,
LLC, 571 F. Supp. 2d 961, 967–68 (W.D. Wis. 2008). “Because the Court has minimal
evidence, this [notice] determination is made using a fairly lenient standard,” and
plaintiff’s burden at this stage is “not onerous.” Loomis, 257 F.R.D. at 676 (internal
quotations omitted).

B.

Scope of the Class

Plaintiffs seek conditional certification and authorization of notice to “all
employees at Defendant’s St. James plant who are paid on an hourly basis and who are
required to wear sanitary clothing or protective gear.” (Reply at 1, Oct. 11, 2013, Docket
No. 42.) Armour argues that this is too broad and that instead notice should be sent to
only those employees who work or have worked on the production line, but not other

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employees such as inspectors or blade sharpeners, whom it argues are not similarly
situated to production-line employees.
Plaintiffs have submitted affidavits from nine current and former employees,
including both production-line and non-production-line employees. The affidavits state
that each employee puts on sanitary clothing and protective gear before their shift begins
and takes off the clothing after punching out (including during unpaid lunch breaks).
(See Schlesinger Aff., Exs. A-I, ¶¶ 6-7.) In the affidavits, the employees estimate that
they perform between ten and twenty minutes of unpaid work per day, which results in
them working over forty hours per week. (Id., Exs. A-I ¶ 8.)
These affidavits suffice to show that the members of the putative class, as defined
by plaintiffs, are similarly situated for the purposes of this preliminary certification stage,
regardless of whether the employees work on the production line or elsewhere. Armour
presents its own declarations which it argues indicates that the statements made by
plaintiffs’ declarants are not actually as similar as they sound. (See Mem. in Opp. to Mot.
to Certify Conditional Class at 6-7, Sept. 27, 2013, Docket No. 37 (citing Decl. of
William Meyer, Sept. 27, 2013, Docket No. 39, to dispute statements made by plaintiffs’
non-production-line declarants).) To the extent Armour seeks that the Court weigh the
credibility of these declarations against its own declarations to conclude that the proposed
class is not, in fact, similarly situated, the Court need not consider disputes over the
factual accuracy of the employees’ statements or weigh the credibility of plaintiffs’
submitted declarations at this stage. Dege, 2007 WL 586787, at *2; see also Dominquez
ex rel. v. Minn. Beef Indus., Inc., Civ. No. 06-1002, 2007 WL 2422837, at *2 (D. Minn.
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Aug. 21, 2007) (“[t]he Court does not make any credibility determinations or findings of
fact with respect to contrary evidence presented by the parties at th[e] initial stage” of
conditional class certification). Furthermore, “[n]umerous courts have . . . observed that
‘disparate factual and employment settings of the individual plaintiffs should be
considered at the second stage of analysis’ rather than at the first stage.” Fisher v. Mich.
Bell Tel. Co., 665 F. Supp. 2d 819, 827 (E.D. Mich. 2009) (quoting White v. MPW Indus.
Servs., Inc., 236 F.R.D. 363, 373 (E.D. Tenn. 2006)); see also Meseck v. TAK Commc’ns,
Inc., Civ. No. 10-965, 2011 WL 1190579, at *6 (D. Minn. Mar. 28, 2011) (“Courts in this
district and elsewhere consistently hold that such potential defenses and individualized
inquiries should not prevent conditional certification at the notice stage and are more
appropriately addressed through a decertification motion.”).
Plaintiffs have presented evidence establishing a colorable basis that all employees
who are paid hourly and required to wear protective or sanitary gear are harmed by
Armour’s policy of not paying such employees for all of the time they work, including
time spent donning and doffing required clothing or gear. Courts have consistently
certified classes in similar circumstances.

See Dege, 2007 WL 586787, at *1-*2

(authorizing a broad class definition: “All current and former production workers
employed by Hutchinson Technology from August 28, 2006, to present,” over
defendant’s objections that not all employees within the scope of the putative class wear
production gear); Frank v. Gold’n Plump Poultry, Inc., Civ. No. 04-1018, 2005 WL
2240336, at *3 (D. Minn. Sept. 14, 2005) (“Plaintiffs’ affidavits provide a colorable basis
for concluding that Gold’n Plump has a common practice of failing to pay its line
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workers for time spent donning, doffing, and sanitizing equipment, and that Gold’n
Plump had a similar practice with respect to the sanitation workers before it began
contracting out sanitation services. Each representative Plaintiff has averred that he or
she is regularly denied pay for the time he or she spends donning, doffing, and/or
sanitizing required equipment.”). Therefore, the Court adopts plaintiffs’ class definition,
which would include: all current and former employees at Defendant’s St. James plant in
the past three years who are/were paid on an hourly basis and who are/were required to
wear sanitary clothing or protective gear.

C.

Scope of the Claims

Armour argues that the certified claims should be limited to pre- and post-shift and
meal period donning and doffing time, arguing that plaintiffs’ proposed claims for
uncompensated pre- and post-shift work are too vague. The Court sees no reason to limit
the scope of plaintiffs’ claims at this early stage. Plaintiffs have adequately stated
allegations that they were not compensated for time they worked beyond time spent
donning and doffing, including that Armour’s practices of using the lesser of the actual
clocked time or the scheduled shift time deprived them of pay for time worked. Armour
has provided no support for limiting the scope of the claims for the purposes of
conditional certification to claims based on time spent donning and doffing.

D.

Notice

Plaintiffs seek authorization to send notice to all putative class members and
provided a proposed judicial notice and consent form. (Schlesinger Aff., Exs. J-K.)
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Armour does not dispute that notice should be sent to the conditional class, but raises
several objections to plaintiffs’ proposed notice, including substantive aspects of the
notice itself and the manner in which the notice is shared. These matters are well within
the Court’s discretion, and the Court will rule on each objection below.

ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.

The Court OVERRULES defendant’s objections [Docket No. 45] and

ADOPTS the Report and Recommendation of the Magistrate Judge dated October 18,
2013 [Docket No. 44].

Accordingly, Defendant’s motion to dismiss Count IV of

Plaintiffs’ complaint [Docket No. 14] is DENIED.
2.

Plaintiffs’ motion to certify a conditional class [Docket No. 30] is

GRANTED as follows:
a.

The notice shall be sent to all current and former employees at

defendant’s St. James facility in the past three years who are or were paid on an
hourly basis and who are or were required to wear sanitary clothing or protective
gear;
Plaintiffs’ proposed notice is authorized with the following changes:

b.
i.

in the second bullet point alter the class definition time period

to read “during the past three years plus one week prior to this notice,”
and

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include defendant’s proposed text outlining defendant’s

ii.

position, with plaintiffs’ proposed modifications as laid out in their Reply
to defendant’s response [Docket No. 42], and
include defendant’s proposed discovery participation warning

iii.

with plaintiffs’ proposed modifications and in the location proposed by
plaintiffs as laid out in their Reply to defendant’s response [Docket No.
42];
c.

The Court does not authorize plaintiffs to send reminder notices at

this time. After the notices have been sent, the Court would consider authorizing
reminder notices if plaintiffs make a showing that such notices are necessary;
d.

The Court authorizes plaintiffs to post the notices at the St. James

facility; and
e.

Defendant has fourteen (14) days from the issuance of this Order to

provide the names and contact information of current and former employees to
plaintiffs’ counsel.

DATED: January 8, 2014
Minneapolis, Minnesota.

____s/
___
JOHN R. TUNHEIM
United States District Judge

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