Davenport v. Charter Communications, LLC

Filing 218

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants motion for judgment on the pleadings is GRANTED as set forth above. (Doc. No. 183.) IT IS FURTHER ORDERED that Plaintiffs motion to certify Count VI of the first amended complaint as a cla ss action is DENIED. (Doc. No. 143.) IT IS FURTHER ORDERED that Plaintiffs motion to certify Count VII of the first amended complaint as a class action is DENIED. (Doc. No. 145.) IT IS FURTHER ORDERED that Plaintiffs combined motion for conditional certification of Count VI is DENIED. (Doc. No. 191.) Signed by District Judge Audrey G. Fleissig on 8/4/14. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PENNY DAVENPORT, et al., individually )
and on behalf of others similarly situated, )
)
Plaintiffs,
)
)
vs.
)
)
CHARTER COMMUNICATIONS, LLC, )
)
Defendant.
)

Case No. 4:12CV00007 AGF

MEMORANDUM AND ORDER
This putative class and collective action is before the Court on several related
motions. Defendant Charter Communications, LLC (“Charter”) moves (Doc. No. 183)
for judgment on the pleadings as to Plaintiffs’ request for class relief in their claim for
unpaid overtime wages under the Kentucky Wages and Hours Act (“Kentucky Act”), Ky.
Rev. Stat. § 337.010 et seq., (Count VI), and as to Plaintiffs’ entire claim for unpaid
overtime wages under the Michigan Minimum Wage Law (“Michigan Act”), Mich. Comp.
Laws § 408.381 et seq.1 (Count VII). Plaintiffs move (Docs. No. 143 & 145) to certify
Counts VI and VII as class actions pursuant to Federal Rule of Civil Procedure 23.
Alternatively, in the event that the Court dismisses Count VI’s request for Rule 23 class
relief, Plaintiffs move (Doc. No. 191) for conditional certification of Count VI as an opt-in

1

The Court notes that the Michigan Minimum Wage Law, Mich. Comp. Laws § 408.381 et
seq., was repealed, effective May 27, 2014, and replaced with the Michigan Workforce
Opportunity Wage Act, Mich. Comp. Laws § 408.411, et seq. However, the relevant
statutory provisions have not changed.

collective action under the Kentucky Act. For the reasons set forth below, the Court shall
GRANT Charter’s motion for judgment on the pleadings and DENY Plaintiffs’ motions
for certification of Counts VI and VII as class actions under Rule 23 and for conditional
certification of Count VI.2
BACKGROUND
Penny Davenport and three other named Plaintiffs brought this action on their own
behalf and on behalf of other former or present call center employees (“CCEs”) who
worked on an hourly basis at Charter’s call centers in Missouri, Kentucky, or Michigan, at
a time when Charter did not pay CCEs for the time it took them to access computer
applications when beginning work and to close down computer applications at the end of
work.
In Count VI of the amended complaint (Doc. No. 69), Plaintiffs seek unpaid
overtime wages under the Kentucky Act, and in Count VII, Plaintiffs seek unpaid overtime
wages under the Michigan Act. Both counts are brought as putative class actions, and
Plaintiffs have moved to certify both counts as class actions under Rule 23 of the Federal
Rules of Civil Procedure.
Charter argues that Plaintiffs’ class allegations and request for class relief under
Count VI should be dismissed because Section 337.385 of the Kentucky Act prohibits class
relief for overtime claims. Charter also argues that Plaintiffs’ entire claim under Count
2

On July 2, 2014, Charter filed a request (Doc. No. 198) for oral argument on all pending
motions. However, in a telephone conference held on July 17, 2014, Charter and
Plaintiffs informed the Court that oral argument was unnecessary regarding the motions
considered in this opinion.
-2-

VII should be dismissed because, as an employer subject to the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq., Charter is exempt from liability under the Michigan
Act.
Regarding Count VI, Plaintiffs argue that the authority on which Charter relies
regarding its interpretation of the Kentucky Act is not binding, and in any event, any state
prohibition on class actions would be preempted by Rule 23 and the National Labor
Relations Act, 29 U.S.C. § 151, et seq. Regarding Count VII, Plaintiffs argue that
Charter’s admission in its answer to the amended complaint that the two named plaintiffs
who worked at Charter’s Michigan call center were “entitled to the rights, protections, and
benefits provided under [the Michigan Act]” defeats its exemption argument, or
alternatively, that Charter waived its right to claim exemption under the Michigan Act
because it failed to plead that argument as an affirmative defense.
In the alternative, Plaintiffs also move separately for conditional certification of
Count VI as an opt-in collective action in the event that the Court dismisses Count VI’s
request for Rule 23 class relief. Plaintiffs argue that the Court may borrow the conditional
certification standards applicable to opt-in collective actions brought under the FLSA, 29
U.S.C. § 216(b), to conditionally certify an opt-in collective action under the Kentucky
Act. Charter opposes this motion on the grounds that Plaintiffs have not pleaded the relief
requested; the Kentucky Act does not authorize opt-in collective actions; and if the Court
were to hold that the Kentucky Act incorporates the FLSA’s standards for opt-in collective
actions, Plaintiffs’ collective action would be time-barred in any event.

-3-

DISCUSION
Charter’s Motion for Judgment on the Pleadings
“Judgment on the pleadings is appropriate where no material issue of fact remains to
be resolved and the movant is entitled to judgment as a matter of law.” Faibisch v. Univ.
of Minn., 304 F .3d 797, 803 (8th Cir. 2002) (citation omitted). When presented with a
motion for judgment on the pleadings, a district court must “accept as true all factual
allegations set out in the complaint” and “construe the complaint in the light most
favorable to the plaintiff, drawing all inferences in [his] favor.” Ashley County, Ark. v.
Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009) (citation omitted). The standard for
judgment on the pleadings is the same as that for failure to state a claim under Rule
12(b)(6) of the Federal Rules of Civil Procedure. Id. at 65. “‘To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-70 (2007)).
Kentucky Act Claim (Count VI)
I.

Class Relief Under the Kentucky Act
The initial question presented by the pending motions is whether Kentucky law

prohibits class actions in employee suits seeking unpaid overtime wages under section
337.385 of the Kentucky Act. When resolving this question, this Court is bound by the
decisions of the Kentucky Supreme Court, and in the absence of a decision on point, as
here, this Court must attempt to predict what the Kentucky Supreme Court would decide if

-4-

it were to address the issue. Raines v. Safeco Ins. Co. of Am., 637 F.3d 872, 875 (8th Cir.
2011); Council Tower Ass’n v. Axis Specialty Ins. Co., 630 F.3d 725, 728 (8th Cir. 2011).
In this regard, the Court may consider relevant state precedent, analogous decisions,
considered dicta, and any other reliable data. Raines, 637 F.3d at 875.
Under Kentucky law, “[t]he cardinal rule of statutory construction is that the
intention of the legislature should be ascertained and given effect.” Wade v. Poma Glass
& Specialty Windows, Inc., 394 S.W.3d 886, 888 (Ky. 2012). “To determine legislative
intent, we look first to the language of the statute, giving the words their plain and ordinary
meaning. And we read the statute as a whole and in context with other parts of the law.”
Id. (citations omitted). Kentucky courts “presume that the General Assembly intended for
the statute to be construed as a whole, for all of its parts to have meaning, and for it to
harmonize with related statutes.” Commonwealth v. Wright, 415 S.W.3d 606, 609 (Ky.
2013).
Section 337.385 of the Kentucky Act, governing employer liability for unpaid
overtime wages, states in relevant part:
(1) Except as provided in subsection (3) of this section, any employer who
pays any employee less than wages and overtime compensation to which
such employee is entitled under or by virtue of KRS 337.020 to 337.285 shall
be liable to such employee affected for the full amount of such wages and
overtime compensation, less any amount actually paid to such employee by
the employer, for an additional equal amount as liquidated damages, and for
costs and such reasonable attorney's fees as may be allowed by the court.
(2) If, in any action commenced to recover such unpaid wages or liquidated
damages, the employer shows to the satisfaction of the court that the act or
omission giving rise to such action was in good faith and that he or she had
reasonable grounds for believing that his or her act or omission was not a
-5-

violation of KRS 337.020 to 337.285, the court may, in its sound discretion,
award no liquidated damages, or award any amount thereof not to exceed the
amount specified in this section. Any agreement between such employee and
the employer to work for less than the applicable wage rate shall be no
defense to such action. Such action may be maintained in any court of
competent jurisdiction by any one (1) or more employees for and in behalf of
himself, herself, or themselves.
Ky. Rev. Stat. §§ 337.385(1)-(2) (emphasis added).
By contrast, another provision within the same statute, governing employer liability
for wage discrimination on the basis of sex, states in relevant part:
(1) Any employer who violates the provisions of KRS 337.423 [prohibiting
wage discrimination because of sex] shall be liable to the employee or
employees affected in the amount of their unpaid wages, and in instances of
willful violation in employee suits under subsection (2) of this section, up to
an additional equal amount as liquidated damages.
(2) Action to recover the liability may be maintained in any court of
competent jurisdiction by any one (1) or more employees for and in behalf of
himself, herself, or themselves and other employees similarly situated. The
court in the action shall, in cases of violation in addition to any judgment
awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be
paid by the defendant, and costs of the action.
Ky. Rev. Stat. §§ 337.427(1)-(2) (emphasis added).
These provisions cannot be considered in isolation but must be construed together,
as part of one statutory scheme. Wright, 415 S.W.3d at 609. Read together, the plain
language of the statute suggests that, for wage discrimination actions, the Kentucky
legislature intended to permit employees to sue in both an individual capacity in behalf of
themselves and a representative capacity in behalf of similarly situated employees. But
for overtime actions, such as the one raised under Plaintiffs’ Count VI, the legislature
intended to permit employees to sue only in an individual capacity. As Charter notes, the
-6-

Kentucky legislature enacted the overtime liability provision eight years after it enacted the
provision governing wage discrimination actions. See Ky. Rev. Stat. § 337.385 (enacted
1974); § 337.427 (enacted 1966). Had the legislature intended to permit employees to
bring overtime actions in a representative capacity, it would have included the “similarly
situated” language it included in the wage discrimination provision.
In line with this interpretation, the Kentucky Court of Appeals has held that “the text
of KRS 337.385(1)3 provides a clear expression of intent that class actions are not
permitted.” Toyota Motor Mfg., Ky., Inc. v. Kelley, No. 2012–CA–001508–ME, 2013
WL 6046079, at *9 (Ky. Ct. App. Nov. 15, 2013), review denied, No.
2013-SC-000804-DE, 2014 Ky. LEXIS 201 (Ky. Apr. 9, 2014). At issue in Kelley was
whether a lower court erred in reopening a dismissed employee action for unpaid wages
under Section 337.385 of the Kentucky Act and in certifying that action as a class action.
The Kentucky appellate court held, first, that the case should not have been reopened, but
second, “even if the trial court had properly reopened this case . . ., KRS 337.385(1) does
not permit class actions and the trial court improperly certified a class.” Id. The
appellate court relied on the language of the statute, reasoning that “the effect of the ‘for
and in behalf of’ language is to limit the individuals who may participate in an action under
the Act to those who actually bring the action.” Id.

3

Although Kelley references Section 337.385(1), a 2013 amendment separately
enumerated the relevant language as Section 337.385(2); other than the renumbering, the
statute did not change in relevant part. See 2013 Ky. Acts page no. 25.
-7-

Plaintiffs argue that the Kelley court’s statutory interpretation is unreliable because
it is “mere dicta” within an unpublished decision. But an alternative holding is not mere
dicta, see Swiss Oil Corp. v. Shanks, 270 S.W. 478, 479 (Ky. 1925) (“[A]n additional
reason for a decision, brought forward after the case has been disposed of on one ground,
[cannot] be regarded as dictum.”) (citations omitted), and in any event, nothing prevents
the Court from considering dicta or unpublished authority. Rather, in the absence of
controlling law from the Kentucky Supreme Court, it is the duty of this Court to consider
all reliable data, including considered dicta, to ascertain what the state law is and apply it.
West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237 (1940); Raines, 637 F.3d at 872. And
“[w]here an intermediate appellate state court rests its considered judgment upon the rule
of law which it announces, that is a datum for ascertaining state law which is not to be
disregarded by a federal court unless it is convinced by other persuasive data that the
highest court of the state would decide otherwise.” West, 311 U.S. at 237. Plaintiffs
have not put forth, and the Court has not found, any other persuasive data to contradict the
plain language of the statute and the holding of the Kentucky appellate court. From all
available evidence, the Court believes that the Kentucky Supreme Court would find that
Section 337.385 of the Kentucky Act prohibits class actions in employee suits seeking
unpaid overtime wages.
II.

Application of Rule 23
Having found that Section 337.385 of the Kentucky Act prohibits Plaintiffs from

pursuing their overtime claim under Count VI as a class action, the Court must next decide

-8-

whether Count VI may nonetheless proceed as a class action under Federal Rule of Civil
Procedure 23.
In Shady Grove Orthopedic Assoc., P.A. v. Allstate Ins. Co., 559 U.S. 393, 396
(2010), the Supreme Court considered whether a New York statute prohibiting class
actions in suits seeking penalties or statutory minimums precluded a federal district court
from entertaining a class action under Rule 23. The Court set out the “familiar”
framework for resolving conflicts between federal rules and state law: first, the court
must determine whether the federal rule answers the question; if it does, the federal rule
governs, notwithstanding a conflicting state law, unless application of the federal rule
would run afoul of the Rules Enabling Act, 28 U.S.C. § 2072(b), which states that federal
rules shall not “abridge, enlarge or modify any substantive right.” Id. at 398, 421-22. A
majority of the Court held that because Rule 23 “creates a categorical rule entitling a
plaintiff whose suit meets the specified criteria to pursue his claim as a class action,” Rule
23 governs whether a given suit may proceed as a class action, notwithstanding a
conflicting state law, unless the application of Rule 23 violates the Rules Enabling Act.
Id. at 401, 429-30. But there was no majority consensus regarding how to determine
whether the application of Rule 23 violates the Rules Enabling Act.
Justice Scalia, writing on behalf of himself and three other justices, concluded that a
federal rule does not violate the Rules Enabling Act as long as it “governs only the manner
and the means by which the litigants’ rights are enforced.” Id. at 407. Justice Scalia’s
approach placed exclusive focus on the federal rule, reasoning that “it is not the substantive

-9-

or procedural nature or purpose of the affected state law that matters, but the substantive or
procedural nature of the Federal Rule.” Id. Because Rule 23, like traditional joinder
rules, “merely enables a federal court to adjudicate claims of multiple parties at once,
instead of in separate suits,” Justice Scalia found that applying Rule 23 over a conflicting
state law would not violate the Rules Enabling Act, regardless of whether the state law was
procedural or substantive. Id. at 408-409 (“[T]he substantive nature of New York's law,
or its substantive purpose, makes no difference.”) (emphasis in original).
Justice Stevens concurred in the holding that Rule 23 governs whether a suit may
proceed as a class action unless its application violates the Rules Enabling Act, and
concurred in the Court’s ultimate ruling that, with regard to the New York law, application
of Rule 23 did not violate the Rules Enabling Act. But Justice Stevens came to that
conclusion for a different reason than the other members of the plurality. Justice Stevens
reasoned that courts cannot focus exclusively on the federal rule in deciding conflicts
because such a focus would ignore the Rules Enabling Act’s limitation that federal rules
shall not “abridge, enlarge or modify any substantive right,” and would ignore “the balance
that Congress struck between uniform rules of federal procedure and respect for a State's
construction of its own rights and remedies.” Id. at 424-25.

In that regard, Justice

Stevens agreed with the four Justices in the dissent that “there are some state procedural
rules that federal courts must apply in diversity cases because they function as a part of the
State's definition of substantive rights and remedies.” Id. at 416-17. Specifically, Justice
Stevens concluded that, under the Rules Enabling Act, “[a] federal rule . . . cannot govern a

-10-

particular case in which the rule would displace a state law that is procedural in the
ordinary use of the term but is so intertwined with a state right or remedy that it functions to
define the scope of the state-created right.” Id. at 423. But Justice Stevens went on to
conclude that the New York law at issue was purely procedural, such that applying Rule 23
would not alter a state-created substantive right. In reaching this conclusion, Justice
Stevens noted that the New York law “expressly and unambiguously applies not only to
claims based on New York law but also to claims based on federal law or the law of any
other State.” Id. at 432. This made it “hard to see how [the New York law] could be
understood as a rule that, though procedural in form, serves the function of defining New
York's rights or remedies.” Id.
When “no single rationale explaining the result [of a Supreme Court opinion] enjoys
the assent of five Justices, the holding of the Court may be viewed as that position taken by
those Members who concurred in the judgments on the narrowest grounds.” Marks v.
United States, 430 U.S. 188, 193 (1977) (citations omitted). The Eighth Circuit has yet to
address whether Justice Stevens’ concurrence is the controlling opinion in Shady Grove.
However, the majority of federal courts to consider the issue have found that Justice
Stevens’ opinion controls. See, e.g., James River Ins. Co. v. Rapid Funding, LLC, 658
F.3d 1207, 1217 (10th Cir. 2011) (“Justice Stevens concurred, and the Tenth Circuit has
understood his concurrence to be the controlling opinion in Shady Grove.”); Leonard v.
Abbott Labs., Inc., No. 10–CV–4676(ADS)(WDW), 2012 WL 764199, at *12 (E.D.N.Y.
Mar. 5, 2012) (“[T] he Court agrees with the majority of district and circuit courts that have

-11-

found Justice Stevens [sic.] concurring opinion was on the ‘narrowest ground’ and
therefore is the controlling opinion.”) (collecting cases); McKinney v. Bayer Corp., 744
F.Supp.2d 733, 747 (N.D. Ohio 2010) (“Because Justice Stevens’ concurring opinion
would permit some state law provisions addressing class actions—whereas Justice Scalia’s
opinion . . . would broadly prohibit any state law that conflicted with Rule 23—Justice
Stevens’ opinion is the narrowest and, thus, controlling opinion.”); Bearden v. Honeywell
Int’l, No. 3:09–1035, 2010 WL 3239285, at *10 (M.D. Tenn. Aug. 16, 2010); Lisk v.
Lumber One Wood Preserving, LLC, No. 3:13–cv–01402–AKK, 2014 WL 66512, at *6-7
(N.D. Ala. Jan. 8, 2014); Phillips v. Philip Morris Cos., Inc., 290 F.R.D. 476, 481 (N.D.
Ohio Mar. 21, 2013).
In applying Justice Stevens’ approach, particularly with regard to determining
whether a state law is so “intertwined with a state right or remedy that it functions to define
the scope of the state-created right,” courts have looked to whether “the limiting provision
is found within the text of a state statute that confers a substantive right and applies only to
cases brought under the statute.” See, e.g., Bearden, 2010 WL 3239285, at *10 (applying
Shady Grove’s concurrence to strike class allegations where “[t]he very statutory provision
that authorizes a private right of action for a violation of the [Tennessee Consumer
Protection Act] limits such claims to those brought ‘individually.’”); Lisk, 2014 WL
66512, at *6-7 (dismissing class claim under Alabama Deceptive Trade Practices Act
because that statute’s “bar on private class actions . . . is contained in the same section of
the Alabama Code that creates a private right of action under the ADPTA, . . . and its text

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limits its application to private rights of action brought under the ADPTA . . . .”); Phillips,
290 F.R.D. at 481 (“Following Shady Grove, courts have looked to whether the state law in
question applies to all claims, or whether its reach is limited to certain claims, as an
indication of whether it substantially impacts state substantive rights.”). The Court agrees
with this approach.
The Court concludes that the class action restriction in Section 337.385 of the
Kentucky Act is “so intertwined” with that statute’s rights and remedies that applying Rule
23 in its stead would “abridge, enlarge or modify” a substantive right in violation of the
Rules Enabling Act. Unlike the New York law at issue in Shady Grove, the Kentucky
Act’s class action restriction is found within the very statutory provision that authorizes a
private right of action for unpaid overtime wages, and the restriction applies only to claims
for violation of sections 337.020 to 337.285 of the Kentucky Act. See Ky. Rev. Stat. §§
337.385(1)-(2). The class action restriction in Section 337.385 functions to define the
scope of Plaintiffs’ substantive rights under the Kentucky Act; therefore, Rule 23 does not
apply.
III.

NLRA Preemption
Plaintiffs also argue that a state law prohibition on class actions for employee

overtime claims would be preempted by the National Labor Relations Act (“NLRA”), 29
U.S.C. § 151 et seq., because collective and class litigation has been held to be concerted
activity under section 7 of the NLRA, 29 U.S.C. § 157.

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State law is preempted if a court determines that (1) Congress expressly preempts
state law; (2) Congress has pervasively regulated conduct in a field manifesting its intent to
preempt state law; or (3) the state law conflicts with federal law. Gade v. Nat’l Solid
Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992); English v. Gen. Elec. Co., 496 U.S. 72, 78-79
(1990); Huang v. Gateway Hotel Holdings, 520 F. Supp. 2d 1137, 1141 (E.D. Mo. 2007).
Because “[t]he NLRA contains no express pre-emption provision,” state law is not
preempted “unless it conflicts with federal law or would frustrate the federal scheme, or
unless we discern from the totality of the circumstances that Congress sought to occupy the
field to the exclusion of the States.” Bldg. & Constr. Trades Council v. Associated
Builders and Contractors of Mass./R.I., Inc., 507 U.S. 218, 224-25 (1993). Courts should
be “reluctant to infer pre-emption” because “[c]onsideration under the Supremacy Clause
starts with the basic assumption that Congress did not intend to displace state law.” Id. at
224.
Two preemption doctrines have developed around the NLRA. The first,
announced in San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959)
(“Garmon”), forbids state and local regulation of activities that are even arguably protected
by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8,
because “[w]hen an activity is arguably subject to § 7 or § 8 of the Act, the States as well as
the federal courts must defer to the exclusive competence of the National Labor Relations
Board[.]” 359 U.S. at 245. “This rule of pre-emption is designed to prevent conflict
between, on the one hand, state and local regulation and, on the other, Congress’ integrated

-14-

scheme of regulation, embodied in §§ 7 and 8 of the NLRA, which includes the choice of
the NLRB, rather than state or federal courts, as the appropriate body to implement the
Act.” Bldg. & Constr. Trades Council, 507 U.S. at 225 (citations omitted); Williams v.
Watkins Motor Lines, 310 F.3d 1070, 1072 (8th Cir. 2002) (Garmon preemption “protects
the jurisdiction of the National Labor Relations Board by displacing state jurisdiction over
conduct which is arguably within the compass of § 7 or § 8 of the Act.”) (citations omitted).
The second doctrine, announced in Lodge 76, Int’l Ass’n of Machinists &
Aerospace Workers v. Wis. Empt. Relations Comm’n, 427 U.S. 132 (1976) (“Machinists”),
prohibits state and local regulation of activities “that Congress intended to be unrestricted
by any governmental power to regulate because it was among the permissible economic
weapons in reserve” left “to be controlled by the free play of economic forces.” 427 U.S.
at 140-141 (citations omitted). This rule “preserves Congress’ intentional balance
between the uncontrolled power of management and labor to further their respective
interests.” Bldg. & Constr. Trades Council, 507 U.S. at 226 (citations omitted);
Southwestern Bell Tell. Co. v. Ark. Public Serv. Comm’n, 824 F.2d 672, 674 (8th Cir. 1987)
(Machinists preemption forbids “an intrusion on the economic self-help measures available
to labor and management that Congress meant to be unregulated.”).
Although Plaintiffs correctly describe the Garmon and Machinists doctrines, they
fail to demonstrate that either doctrine is relevant here. Plaintiffs do not argue that their
putative class action under the Kentucky Act is, or is arguably, within the exclusive
jurisdiction of the NLRB to implicate Garmon preemption. To the contrary, Plaintiffs

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concede the jurisdiction of this Court by choosing to file suit here, under the very state
statute they now seek to abrogate. If the Kentucky Act were preempted as an intrusion on
NLRB jurisdiction, Plaintiffs could not maintain Count VI in this Court. Neither do
Plaintiffs argue that Congress clearly intended to leave the field of class or collective
litigation unregulated to invoke Machinists preemption. Again, just the opposite. The
very statutes and procedures under which Plaintiffs bring suit—Rule 23 and the
FLSA—are evidence that Congress intended the field to be regulated.4 The Machinists
doctrine does not apply.
In short, Plaintiffs’ preemption argument is without merit. Plaintiffs have not
cited, and the Court has not found, any case holding that a state law regulating collective or
class wage litigation is preempted by the NLRA. The cases Plaintiffs cite regarding
employer conduct affecting employees’ ability to litigate collectively are inapposite.
These cases have nothing to do with preemption.
As neither Rule 23 nor the NLRA abrogates the restriction on class actions set forth
in Section 337.385 of the Kentucky Act, Charter is entitled to judgment on the pleadings as
to Plaintiffs’ class claims under Count VI. For the same reasons, Plaintiffs’ motion to
certify Count VI as a Rule 23 class action must be denied.

4

Although Congress has regulated collective and class litigation to some extent, Plaintiffs
do not argue that “Congress sought to occupy the field to the exclusion of the States.”
Bldg. & Constr. Trades Council, 507 U.S. at 224. Nor does the Court find any basis on
which to infer such field preemption.
-16-

Michigan Act Claim (Count VII)
Charter also seeks judgment on the pleadings as to Plaintiffs’ entire overtime claim
under Count VII on the ground that the Michigan Act does not apply to employers subject
to the FLSA, such as Charter.
The Michigan Act states:
1) This act does not apply to an employer that is subject to the minimum wage
provisions of the fair labor standards act of 1938, 29 USC 201 to 219, unless those
federal minimum wage provisions would result in a lower minimum hourly wage
than provided in this act. Each of the following exceptions applies to an employer
who is subject to this act only by application of this subsection:
(a) Section 4a does not apply.
Mich. Comp. Laws § 408.394(1)(a) (now § 408.420(1)(a)). Section 4a, in turn, contains
the overtime provisions under which Plaintiffs raise their claim in Count VII. Mich.
Comp. Laws § 408.384a (now § 408.414a).
Plaintiffs allege, and Charter admits, that Charter is subject to the FLSA. (Doc.
No. 69 at 10; Doc. No. 77 at 7.) Thus, under the plain language of the statute, Charter is
exempt from the overtime provisions of the Michigan Act, and Count VII must be
dismissed as a matter of law. Hayes v. Rite Aid of Mich., Inc., No. 248015, 2004 WL
1335865, at *1-2 (Mich. Ct. App. June 15, 2004) (affirming dismissal of plaintiff’s
overtime claim under the Michigan Act, as well as sanctions against plaintiff for filing a
meritless claim, where “plaintiff’s claim was clearly subject to the FLSA” and the law was
“well-settled” that “employers subject to the FLSA are exempt from the MMWL[’s]”
overtime provisions); Arrington v. Mich. Bell. Tel. Co., 746 F.Supp.2d 854, 859 (E.D.
Mich. 2010) (dismissing Michigan overtime claim for failure to state a claim because “the
-17-

exemption found in section 14 of the MMWL applies to the defendant in this case [who] is
subject to the FLSA”); Hazel v. Mich. State Employees Ass’n , 826 F. Supp. 1096, 1102
(W.D. Mich. 1993) (where “[p]laintiffs admit in their Complaint that [defendant] is an
employer subject to the Federal Fair Labor Standards Act,” and defendant “does not
dispute this allegation,” the Michigan Act “bars the plaintiffs' recovery and the defendants
are entitled to a judgment on the pleadings as to [the overtime claim].”); Harris v. Reliable
Reports Inc., No. 1:13–CV–210 JVB., 2014 WL 931070, at *7 (N.D. Ind. Mar. 10, 2014)
(dismissing overtime claim under Michigan Act because “by virtue of Michigan Compiled
Laws § 408.394(1)(a), the Michigan overtime provisions do not apply to [defendant],
because [defendant] is subject to the FLSA.”); Smith v. Family Video Movie Club, No. 11
C 1773, 2011 WL 3439276, at *1 (N.D. Ill. Aug. 4, 2011) (dismissing overtime claim
under Michigan Act because “Plaintiffs agree that [defendant] is subject to the FLSA since
Plaintiffs have included FLSA claims in the amended complaint”).
Plaintiffs do not contest that Charter is subject to the FLSA or that employers
subject to the FLSA are exempt from the overtime provisions of the Michigan Act.
Instead, Plaintiffs oppose Charter’s motion on pleading grounds, arguing that Charter’s
answer to Plaintiffs’ amended complaint precludes Charter from claiming exemption under
the Michigan Act. Specifically, Plaintiffs argue that Charter’s answer to paragraph 101 of
the amended complaint constitutes a binding admission that it is subject to the Michigan
Act or, alternatively, that Charter waived its exemption argument by failing to plead it as an
affirmative defense.

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Plaintiffs’ arguments are without merit. Charter’s answer to paragraph 101 does
not admit that it is subject to the Michigan Act. At most, Charter admits that two of the
named Plaintiffs “who worked in Michigan have been entitled to the rights, protections,
and benefits provided under the MICHMWL, Mich. Comp. Laws § 408.381 et seq.”
(Doc. No. 77 at 12; Doc. No. 69 at 17.) This paragraph does not reference whether
Charter is subject to the Michigan Act, and Charter elsewhere denies that it is liable under
the Michigan Act. For example, in paragraph 102, Charter admits that the Michigan Act
“exempts qualifying employers from its obligations” and denies that the “exemptions [are]
not applicable herein.” (Doc. No. 77 at 12; Doc. No. 69 at 17.) And in paragraphs 107
and 109, Charter denies that it violated the Michigan Act by failing to pay Plaintiffs
overtime wages and denies that Plaintiffs are entitled to damages for unpaid overtime
wages under the Michigan Act. (Doc. No. 77 at 12-13; Doc. No. 69 at 18.)
Neither did Charter waive its exemption argument by failing to plead it as an
affirmative defense. Plaintiffs fail to cite a single case holding that the Michigan Act’s
FLSA exemption is an affirmative defense. Instead, Plaintiffs cite cases holding just the
opposite, namely, that where it is undisputed that the defendant is subject to the FLSA, as
here, plaintiffs fail to state a prima facie claim for unpaid overtime wages under the
Michigan Act as a matter of law. See Arrington, 746 F. Supp.2d at 859; Hayes, 2004 WL
1335865, at *1-2.5 Accordingly, Charter is entitled to judgment on the pleadings as to

5

Plaintiffs’ citation to Allison v. Pepsi Bottling Group, Inc., No. 5:03-cv-244, 2004 U.S.
Dist. LEXIS 29763 (W.D. Mich. June 28, 2004) is equally unavailing as that opinion was
vacated following the decision of the Michigan Court of Appeals in Alexander v.
-19-

Count VII. For the same reasons, Plaintiffs’ motion to certify Count VII as a Rule 23 class
action must be denied.
Plaintiffs’ Request for Conditional Certification of Count VI
Because the Court dismisses Plaintiffs’ request for class relief under Count VI’s
Kentucky Act claim, the Court now considers Plaintiffs’ alternative motion for conditional
certification of Count VI. In asking the Court to conditionally certify Count VI as an
opt-in collective action under the Kentucky Act, Plaintiffs state that “[c]ourts apply the
same conditional certification standards to opt-in collective actions brought under state law
as they apply to opt-in collective actions brought under the Fair Labor Standards Act
(‘FLSA’), 29 U.S.C. § 216(b).” (Doc. No. 191 at 2.) Plaintiffs cite Blount v. U.S.
Security Assocs., 945 F. Supp. 2d 88, 92 (D.D.C. 2013) and Dinkel v. MedStar Health, Inc.,
880 F. Supp. 2d 49, 52 (D.D.C. 2012) for this proposition. But the D.C. Minimum Wage
Act at issue in Blount and Dinkel tracks the language of the FLSA in providing:
[An] [a]ction to recover damages sued for under this subchapter may be maintained
in any court of competent jurisdiction . . . by any 1 or more employees for and on
behalf of the employee and other employees who are similarly situated. No
employee shall be a party plaintiff to any action brought under this subchapter
unless the employee gives written consent to become a party and the written consent
is filed in the court in which the action is brought.
D.C. Code § 32-1012(b) (tracking the nearly identical language found in 29 U.S.C. §
216(b)).
Perfection Bakeries, 705 N.W.2d 31, 33-34 (Mich. Ct. App. 2005), in which the Michigan
court affirmed dismissal of plaintiffs’ Michigan Act claim under the statutory exemption
by applying the plain language of the statute. See Alexander, 705 N.W.2d at 165-66;
Allison, No. 5:03-CV-244, 2006 U.S. Dist. LEXIS 40617 (W.D. Mich. June 19, 2006)
(vacating June 28, 2004 opinion and entering judgment in favor of defendant).
-20-

In other words, the D.C. Minimum Wage Act, like the FLSA, explicitly authorizes
opt-in collective actions brought on behalf of “similarly situated” employees who provide
written consent. This language is absent from the Kentucky Act. Ky. Rev. Stat. §
337.385. Therefore, Blount and Dinkel are irrelevant. 6 Plaintiffs do not provide the
Court with any authority to apply the FLSA’s two-step conditional certification process to
their overtime claim under the Kentucky Act, and the Court finds no authority to do so.
Because the Court holds that it has no authority to conditionally certify Plaintiffs’
claim under Count VI as an opt-in collective action, the Court need not reach Charter’s
alternative argument that a FLSA-like collective action would be time-barred under the
statute of limitations found in Ky. Rev. Stat. § 413.120(2) because the only named Plaintiff
asserting a Kentucky claim did not file a timely written consent to join the action. See 29
U.S.C. § 256. However, the Court notes that Plaintiffs’ response to Charter’s statute of
limitations argument only further supports the Court’s ruling today. Plaintiffs respond
that their claim is timely, notwithstanding any failure to file a written consent, because the
Kentucky Act, “unlike the FLSA, does not specify any particular method of consenting to
participate.” (Doc. No. 194 at 5.) Precisely. The Kentucky Act does not specify consent
procedures for opt-in collective actions because it does not contemplate such actions. The
Court will deny Plaintiffs’ motion.

6

Moreover, in Dinkel, the parties “agree[d] that conditional certification is governed by the
same standard under the FLSA and DC-MWA,” so the court had no occasion to question
the parties’ assumptions. See Dinkel, 880 F. Supp. 2d at 53 n.3.
-21-

CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant’s motion for judgment on the
pleadings is GRANTED as set forth above. (Doc. No. 183.)
IT IS FURTHER ORDERED that Plaintiffs’ motion to certify Count VI of the
first amended complaint as a class action is DENIED. (Doc. No. 143.)
IT IS FURTHER ORDERED that Plaintiffs’ motion to certify Count VII of the
first amended complaint as a class action is DENIED. (Doc. No. 145.)
IT IS FURTHER ORDERED that Plaintiffs’ combined motion for conditional
certification of Count VI is DENIED. (Doc. No. 191.)

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 4th day of August, 2014.

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