MEBANE, ET AL. V. GKN DRIVELINE NORTH AMERICA, INC., ET AL.

Filing 154

MEMORANDUM OPINION AND ORDER signed by JUDGE LORETTA C. BIGGS on 8/2/2022; that Plaintiffs' Motion to Amend Previously Certified Class or, in the alternative, to Certify Class Claims, (ECF No. #148 ), is GRANTED in part and DENIED in part. It is GRANTED with respect to claims that employees were not paid for ordinary, or emergency work conducted during mealtimes due to Defendant's Automatic Deduction Policy as outlined in this Memorandum Opinion. It is DENIED with respect to all other claims. FURTHER that Plaintiffs shall submit within fifteen days of this Order a proposed Notice to be sent to members of the newly certified Automatic Deduction class that complies with Rule 23(c)(2)(B). Defendant may, but need not, submit a response to such proposed Notice within ten days of being served therewith. FURTHER that Plaintiffs' Motion for Summary Judgment, (ECF No. #128 ), is DENIED WITHOUT PREJUDICE. Plaintiffs may refile their motion within thirty days of this Order. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JAMES MEBANE and ANGELA WORSHAM,
on behalf of themselves and all others
similarly situated,
Plaintiffs,
v.
GKN DRIVELINE NORTH AMERICA, INC.,
Defendant.

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1:18-CV-892

MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS, District Judge.
Before the Court is Plaintiffs’ Motion to Amend Previously Certified Class or, in the
alternative, to Certify Class Claims, filed on March 31, 2022. (ECF No. 148.) Also before the
Court is Plaintiffs’ Motion for Summary Judgment, filed on November 29, 2021. (ECF No.
128.) For the reasons stated herein, Plaintiffs’ motion to certify will be granted in part and
denied in part, and Plaintiffs’ motion for summary judgment, which was filed based on a
complaint and certified class which have since been amended, will be denied without prejudice
as moot.
I.

BACKGROUND
Defendant operates three manufacturing facilities in North Carolina. (ECF No. 146

¶ 13.) Plaintiffs worked for Defendant as non-exempt, hourly employees until April 2018. (Id.
¶¶ 14, 15.) They filed this suit on their own behalf and on behalf of similarly situated

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employees on October 23, 2018, alleging that Defendant failed to pay its employees for all
hours worked in violation of the Fair Labor Standards Act (“FLSA”) and North Carolina Wage
and Hour Act (“NCWHA”). (Id. ¶¶ 90–122.) Among other charges, Plaintiffs alleged that
Defendant did not compensate employees for work performed before shifts began or after
shifts ended due to its “Rounding Policy,” even though employees notified Defendant of
actual hours worked by clocking in and out. See Mebane v. GKN Driveline N. Am., Inc., 337
F.R.D. 479, 492 (M.D.N.C. 2020). On November 5, 2020, this Court conditionally certified
Plaintiffs’ FLSA claims and certified the following NCWHA class:
Individuals who were, are, or will be employed at Defendant GKN’s North
Carolina facilities on the manufacturing floor in non-managerial positions, were
not compensated all promised, earned, and accrued wages due to Defendant’s
rounding policy, including, but not limited to, compensation for all hours
worked up to forty (40) in a week and for hours worked above forty (40) in a
week within two years prior to the commencement of this action, through the
present.
Id. at 494.
On June 23, 2021, Plaintiffs requested leave to file a Fourth Amended Complaint
(“FAC”) to add allegations that class members were also not compensated when they worked
during scheduled lunch breaks due to Defendant’s “Automatic Deduction Policy.” (ECF Nos.
107; 108 at 6–7.) Under Defendant’s Automatic Deduction Policy, Defendant generally
scheduled an unpaid thirty-minute meal break during each hourly employee’s shift. (ECF No.
73-1 ¶¶ 7–8.) Until January 2020, employees did not clock-out during these meal periods
unless they left Defendant’s premises. (See id. at 9, 13; ECF Nos. 108-2 ¶ 14; 132-1 ¶ 18.)
Instead, Defendant automatically deducted thirty minutes from each employee’s total hours
worked each shift. (ECF No. 56-1 at 162:21–163:1.) Defendant ended the automatic

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deduction in approximately January 2020 and now requires employees to clock in and out
during their meal period. (ECF No. 132-1 ¶ 19.)
Named Plaintiffs and sixteen Class Members testify that they worked during unpaid
meals or otherwise did not receive full thirty-minute meal breaks. Named Plaintiff Mebane
testifies that he frequently worked through lunch to monitor Defendant’s machines because
Defendant did not turn the machines off during lunch, and Mebane “could not leave the
machine unoccupied while [it was] running” without losing product or risking a jam in the
machine. (ECF No. 129-5 at 168:4–169:20.) Other employees likewise worked through meals
or were called back to work during meals, often because, due to staffing shortages, no one else
could cover their workstations or respond to emergencies. (ECF Nos. 108-2 ¶ 13; 108-3 ¶¶ 8,
9; 108-4 ¶¶ 8, 9; 108-5 ¶ 13; 108-6 ¶ 14; 108-10 ¶ 11; 108-12 ¶¶ 14–17; 108-13 ¶¶ 6–8; 108-14
¶ 7; 108-16 ¶¶ 11–12; 108-17 ¶ 11.)
Named Plaintiff Worsham testifies that she took a meal break every day, but her meals
were truncated because she had to use a portion of her unpaid thirty minutes to clean oil and
metal shavings from her hands, navigate her oily workstation floor, retrieve her lunch from
the cafeteria, and then timely return to her workstation before her shift began. (ECF No. 1296 at 134:23–138:16.) Other employees likewise used unpaid mealtime to wash before eating,
(ECF Nos. 108-3 ¶ 9; 108-7 ¶ 13; 108-8 ¶ 19; 108-9 ¶ 9; 108-10 ¶ 12; 108-14 ¶ 6; 108-17 ¶ 12),
or walk to and from their workstation, (ECF Nos. 108-7 ¶ 13; 108-9 ¶ 9; 108-10 ¶ 12; 108-11
¶ 11). Individual employees also complain that they spent mealtime removing and storing
protective equipment, (ECF Nos. 108-8 ¶ 19; 108-14 ¶ 6), or had to wait in line to microwave
their food, (ECF Nos. 108-9 ¶ 9; 108-10 ¶ 12; 108-11 ¶ 11).

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Plaintiffs also offer evidence that supervisors directed or witnessed unpaid mealtime
work. One employee testifies that supervisors required employees to work during the unpaid
meals. (See ECF No. 108-16 ¶ 14 (“My supervisor often instructed me to let operators eat
while working so production would not stop.”).) Another testifies that his supervisor
acknowledged that he “was not going to be paid for [lunch] even if [he] worked through it,”
(ECF No. 108-5 ¶ 14), while a third testifies that supervisors penalized employees for turning
machines off during lunch, (ECF No. 108-8 ¶¶ 20–21). Other employees testify that they
reported working through lunch to their supervisors or to Human Resources, but problems
persisted. (See, e.g., ECF Nos. 108-2 ¶¶ 13–14; 108-6 ¶ 18; 108-12 ¶ 17.) Each employee
testified to “personally speaking with, observing, and working alongside” other employees
who worked during meals. (See, e.g., ECF No. 108-17 ¶ 14.)
Defendants offer rebuttal evidence that employees did not work during unpaid
mealtimes. One employee testifies that he worked through lunch “once in a blue moon, maybe
once a month” or once every “two or three months.” (ECF No. 134-11 at 48:4-16.)
Defendants offer additional testimony from thirty-eight employees that never performed
unpaid meal break work. (See generally ECF No. 151 at 15 (citing ECF Nos. 134-12–134-15;
134-17–134-47; 134-63; 134-66; 134-67).) These thirty-eight employees have opted out of the
certified Rounding Policy Class. (See generally ECF No. 152 at 6 n.2 (citing ECF Nos. 134-12–
134-15; 134-17–134-47; 134-66; 134-67).)
This Court granted Plaintiffs’ motion to amend their complaint on March 10, 2022 but
clarified that “Plaintiffs’ newly asserted claim that Class members were not paid for hours
worked during lunch falls outside the scope of the NCWHA Class certified by this Court” and

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“Plaintiffs must file a separate motion to amend the Court’s Order to certify a new Class.”
(ECF No. 145 at 6.) Plaintiffs’ motion followed. (ECF No. 148.) Discovery has now closed,
and a trial is scheduled in this case for January 9, 2023. (ECF No. 150.)
II.

STANDARD OF REVIEW
“An order that grants or denies class certification may be altered or amended before

final judgment.” Fed. R. Civ. P. 23(c)(1)(C). “Even after a certification order is entered, the
judge remains free to modify it in light of subsequent developments in the litigation.” Gen.
Tele. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982).
In order to be certified under Rule 23, a class must first comply with the four
prerequisites established in the Rule’s subsection (a): “(1) numerosity of parties; (2)
commonality of factual and legal issues; (3) typicality of claims and defenses of class
representatives; and (4) adequacy of representation.” Gunnells v. Healthplan Servs., Inc., 348 F.3d
417, 423 (4th Cir. 2003) (citing Fed. R. Civ. P. 23(a)). Once that baseline is established, the
class action “must fall within one of the three categories enumerated in Rule 23(b).” Id. (citing
Fed. R. Civ. P. 23(b)). Plaintiffs seek class certification in this case under Rule 23(b)(3), (ECF
No. 148 at 1), which requires both that “questions of law or fact common to class members
predominate over any questions affecting only individual members” and, second, that “a class
action is superior to other available methods” of adjudication, Fed. R. Civ. P. 23(b)(3).
A party seeking class certification under Rule 23 “must affirmatively demonstrate his
compliance with the Rule—that is, he must be prepared to prove” his ability to meet all of the
prerequisites the Rule requires. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011); see also
Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 146 (4th Cir. 2001) (“The party seeking class

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certification bears the burden of proof.” (citation omitted)). Yet while the plaintiff bears the
burden to demonstrate compliance, a district court also “has an independent obligation to
perform a ‘rigorous analysis’ to ensure that all of the prerequisites have been satisfied.” EQT
Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014) (citing Wal-Mart, 564 U.S. at 350–51).
“Frequently that ‘rigorous analysis’ will entail some overlap with the merits of the plaintiff’s
underlying claim.”

Wal-Mart, 564 U.S. at 351.

However, “[m]erits questions may be

considered to the extent—but only to the extent—that they are relevant to determining
whether the Rule 23 prerequisites for class certification are satisfied.” Amgen Inc. v. Conn. Ret.
Plans & Tr. Funds, 568 U.S. 455, 466 (2013).
When considering whether or not to certify a class, a court need not certify either all
claims or none. Rather, Rule 23(c)(4) allows a court to separate claims and define narrow
classes with respect to particular issues “[w]hen appropriate.” Fed. R. Civ. P. 23(c)(4). The
Fourth Circuit has counseled courts to “take full advantage of the provision in subsection
(c)(4) permitting class treatment of separate issues in the case” where an action “includes
multiple claims.” Gunnells, 348 F.3d at 441 (emphasis omitted). This “enabl[es] courts to
restructure complex cases to meet the other requirements for maintaining a class action” and
secure “the advantages and economies of adjudicating issues that are common to the entire
class on a representative basis.” Id. (quoting 7B Wright & Miller, Federal Practice and Procedure
§ 1790). Each separated class must meet the requirements of Rule 23 to be certified. Id.
III.

ANALYSIS
Plaintiffs seek to amend the NCWHA class to include claims for wages lost due to

Defendant’s Automatic Deduction Policy or, in the alternative, certify a separate Automatic

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Deduction class. (ECF No. 149 at 6.) The Court finds it appropriate to separate the Rounding
Policy and Automatic Deduction claims into separate classes pursuant to Rule 23(c)(4). The
two claims involve different questions of law and fact that require nuanced analysis of each
under Rule 23.
First, the two classes are not coextensive. Employee testimony shows that employees
engaged in different conduct during unpaid mealtimes that may or may not be compensable,
and some testified that they never worked during lunch. Second, Plaintiffs’ Rounding Policy
claim is supported by Defendant’s time records, which document which employees clocked in
before or clocked out after their shifts began or ended. Employees did not typically clock out
during lunch, so Plaintiffs’ Automatic Deduction claim must be supported by evidence that
individual Class members worked during unpaid mealtimes on particular occasions. Third,
the Court has not received briefing on the relevant legal standard for assessing whether
Defendant’s Automatic Deduction Policy violated the NCWHA and will not offer an opinion
here on what the relevant standard is. It appears, however, that whether an employee’s
mealtime activities are compensable may be a “flexible and realistic” question that requires the
trier of fact to determine “whether, on balance, employees use mealtime for their own, or for
their employer’s benefit.” Roy v. Cnty. of Lexington, 141 F.3d 533, 545 (4th Cir. 1998) (analyzing
a meal work claim under FLSA). It appears, therefore, that the Automatic Deduction claims
depend on issues of law and fact that will vary significantly between members of the Rounding
Policy Class. It would consequently be inappropriate to merely amend the Rounding Policy
Class to include Plaintiffs’ Automatic Deduction claims.

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Moreover, Plaintiffs’ evidence does not show a uniform theory of liability for their
Automatic Deduction claims. Mebane and approximately eleven putative class members
testify that they completed normal work at their workstations or responded to emergencies
during meal breaks, primarily because of understaffing. Worsham, on the other hand, testifies
that she took every meal break but lost time due to washing her hands and walking to and
from her workstation. Other Class members spent unpaid time removing and storing
protective equipment or waiting in line for the microwave. Thus, it appears that resolving
whether Mebane or Worsham completed compensable work during unpaid mealtimes will
resolve the same question for some, but not all, putative class members.
Accordingly, the Court will examine two potential classes for certification: one,
represented by Mebane, that conducted ordinary or emergency work during unpaid mealtimes;
and a second, represented by Worsham, that were otherwise unable to take a full thirty-minutes
for lunch.
A.

Mebane’s class

Under Rule 23(a), a class must meet the requirements of numerosity, commonality,
typicality, and adequacy. Fed. R. Civ. P. 23(a)(1)–(4). Regarding Mebane’s Automatic
Deduction class, there is an open question as to the number of employees who actually worked
during meals. Of the Approximately 3,000 employees subject to the Automatic Deduction
Policy, approximately twelve (including Mebane) testify that they regularly stayed at their
station during all or part of their lunch or were called back from lunch early to deal with an
emergency. One employee testifies to working through lunch “once in a blue moon”;
approximately five of Plaintiffs’ affiants testify to missing mealtime for other reasons; and

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thirty-eight employees testify that they never worked through lunch. At this stage, however,
it is not necessary to determine the exact size of the putative class. Plaintiffs’ twelve affiants
are sufficient evidence of a larger cohort of employees who worked during lunch, and each
testified to “personally speaking with, observing, and working alongside” other employees
who worked during meals. Thus, the Court finds that a sufficiently numerous group of
employees worked during unpaid mealtimes, satisfying the first element.

Plaintiff will

ultimately bear the burden of demonstrating the approximate total number of members of the
class.
Second, the commonality element requires a plaintiff to demonstrate that “there are
questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). Because “any
competently crafted class complaint literally raises common questions,” what matters most to
commonality is “the capacity of a class-wide proceeding to generate common answers apt to
drive the resolution of the litigation.” See Wal-Mart, 564 U.S. at 349–50 (internal quotations
omitted). Although Rule 23(a)(2) speaks of “questions,” plural, “[a] single common question
will suffice,” so long as it is “of such a nature that its determination ‘will resolve an issue that
is central to the validity of each one of the claims in one stroke.’” EQT, 764 F.3d at 360 (citing
Wal-Mart, 564 U.S. at 350, 359). That said, “[t]he common questions must be dispositive and
over-shadow other issues” in the case, Lienhart, 255 F.3d at 146 (citation omitted), and a
plaintiff must show that he or she has suffered the same injury and not merely a violation of
a particular provision of law, Wal-Mart, 564 U.S. at 349–50 (citing Falcon, 457 U.S. 147, 157
(1982)).

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Here, it is undisputed that all putative class members were subject to the challenged
Automatic Deduction policy. All worked in some capacity during unpaid mealtimes. All
shared the same injury in lost wages. And the same alleged misconduct—automatically
deducting thirty-minutes from their wages—caused each’s injury. Thus, the question of
liability under the NCWHA is common to the entire putative class and answering that question
will resolve class members’ claims.
Defendant argues that individual factual differences between putative class members
destroys commonality, but this argument is unpersuasive. Given the Court’s narrow definition
of this putative class, it appears that facts relevant to the determination of liability are
substantially similar among putative members. And although differences in frequency and
duration of mealtime work exist, these individual differences appear to go primarily to damages
and are overshadowed by common issues of liability.
Third, typicality is demonstrated when a representative’s pursuit of her own interests
“simultaneously tend[s] to advance the interests of the absent class members.” Deiter v.
Microsoft Corp., 436 F.3d 461, 466 (4th Cir. 2006). An appropriate analysis of typicality begins
“with a review of the elements of plaintiffs’ prima facie case and the facts on which the plaintiff
would necessarily rely to prove it.” Id. at 467. A court must then “determine the extent to
which those facts would also prove the claims of the absent class members.” Id.
To make out a prima facie case under the NCWHA, a plaintiff must show that she “(1)
earned wages that (2) an employer did not pay (3) at the proper time.” Mebane, 337 F.R.D. at
493. To show that he earned wages, Mebane must demonstrate that the work he performed
during mealtimes was compensable. Since putative class members also performed ordinary or

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emergency job duties during mealtimes, Mebane’s proof of this element will require facts and
argument that would tend to prove that putative members’ work was also compensable. The
same is true of the second and third elements. Defendant points out individual differences
between Mebane’s testimony and the testimony of putative class members, such as the
difference between remaining at one’s workstation due to short staffing and returning to work
early to address an emergency. At this stage, however, it appears these nuances are not so
great as to defeat typicality. Each putative member completed work typical of his or her
position during mealtimes, often because Defendant did not have another employee who
could be called upon to do the work instead. Thus, Mebane’s claim is typical of putative class
members’ claims.
Fourth, Plaintiffs must show that they “will fairly and adequately protect the interests
of the class.” Fed. R. Civ. P. 23(a)(4). In addition to the plaintiff being a member of the class,
“basic due process requires that named plaintiffs [also] possess undivided loyalties to absent
class members.” Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331, 338 (4th Cir. 1998).
Moreover, under Rule 23(a)(4), a court must also find that class counsel is “qualified,
experienced and generally able to conduct the proposed litigation.” McLaurin v. Prestage Foods,
Inc., 271 F.R.D. 465, 476 (E.D.N.C. 2010) (quoting Eisen v. Carlisle & Jacquelin, 391 F.2d 555,
562 (2d Cir. 1968)). Here, Mebane’s interests are aligned with other employees who worked
during unpaid mealtimes and were not compensated, and there is no evidence that his loyalties
are divided. Testimony from employees who have opted out of the Class is irrelevant to the
question of whether Plaintiffs adequately represent the interests of Class members. Further,
this Court reviewed Class Counsel’s qualifications and involvement in similar litigation and

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found that she satisfies Rule 23(a)(4). Nothing in the record compels any change in that
conclusion here. Thus, the putative class satisfies the adequacy requirement.
When a plaintiff can satisfy each element of Rule 23(a), they must additionally meet
one of the requirements under 23(b). Fed. R. Civ. P. 23(b). In this case, Plaintiffs seek class
certification under Rule 23(b)(3), (ECF No. 67 at 6), which requires (1) that “questions of law
or fact common to class members predominate over any questions affecting only individual
members”; and (2) that “a class action is superior to other available methods” of adjudication,
Fed. R. Civ. P. 23(b)(3). Four factors are pertinent to the predominance and superiority
inquiry:
(A) the class members’ interests in individually controlling the prosecution or
defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already
begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the
claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Id.
A predominance inquiry “tests whether proposed classes are sufficiently cohesive to
warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623
(1997). A court must consider “whether the common, aggregation-enabling, issues in the case
are more prevalent or important than the non-common, aggregation-defeating, individual
issues,” Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036, 1045 (2016) (quoting 2 W. Rubenstein,
Newberg on Class Actions § 4:49, 195–96 (5th ed. 2012)). An individual issue is one where
evidence varies between class members whereas common issues are present when “the same

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evidence will suffice for each member to make a prima facie showing. . . .” Id. (quoting
Rubenstein, supra § 4:50, 196–97). Ultimately, this “balancing test of common and individual
issues is qualitative, not quantitative.” Ealy v. Pinkerton Gov’t Servs., Inc., 514 F. App’x 299, 305
(4th Cir. 2013) (citing Gunnells, 348 F.3d at 429).
Here, putative class members share a common theory of liability and substantially
similar facts.

Each seeks payment for time actually worked during unpaid mealtimes.

Defendant argues that variations between members’ mealtime experiences preclude class
certification. (ECF No. 151 at 8–12.) These differences, however, appear to be either
irrelevant or manageable in this class action. First, questions about which class members
performed meal break work and the frequency and duration of that work go to a calculation
of damages. Although such a calculation will depend on facts that vary from member to
member, these individual questions are outweighed in importance and prevalence by the
common questions of liability discussed above. Second, Defendant has not shown that
questions about supervisor involvement in alleged unpaid meal break work is relevant to
Defendant’s obligation under the NCWHA to compensate Class members for all hours
worked. At this stage, individual differences in supervisor involvement does not defeat class
certification. Third, remaining differences in testimony appear to be overblown. Putative
members offer highly similar accounts of mealtime work, and differences do not appear to
meaningfully impact class certification at this stage.
Applying the Rule 23(b)(3) factors, class members have limited interest in individually
controlling the prosecution of separate actions that would likely result in low levels of damages
compared to the high cost of litigating individual suits. No litigation has begun by or against

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Class members.

Concentrating the claims in this Court, which is relatively central to

Defendant’s North Carolina facilities, is desirable and lends itself to judicial efficiency and
consistency of outcomes. Finally, the primary difficulty in managing this class action will be
in calculating damages if liability is established. As mentioned, it appears that not all 3,000
employees worked during unpaid mealtimes, and Plaintiff bears the burden to show how many
employees are represented by Mebane and the eleven other affiants. At this stage, however,
it is not clear that a calculation of damages would require “3,000-plus mini-trials.” See Reich v.
Gateway Press, Inc., 13 F.3d 685, 701 (3d Cir. 1994) (“Courts commonly allow representative
employees to prove violations with respect to all employees.”) (collecting cases). Whether
Plaintiffs’ evidence is sufficient to show that Defendant violated the rights of employees
beyond those who have testified is a question better left to future stages of this litigation. At
this stage, the Court finds that manageability concerns are outweighed by the advantages and
economies of class litigation.
For these reasons, the Court will certify the following Rule 23 Automatic Deduction Class:
Individuals who were, are, or will be employed at Defendant GKN’s North
Carolina facilities on the manufacturing floor in non-managerial positions, were
not compensated all promised, earned, and accrued wages for hours worked
during unpaid meals due to Defendant’s automatic deduction policy, including,
but not limited to, compensation for all hours worked up to forty (40) in a week
and for hours worked above forty (40) in a week within two years prior to the
commencement of this action, through the present.
B.

Worsham’s class

Unlike Mebane’s class, numerous problems with Worsham’s class are readily apparent.
First, employees’ testimony of why they were unable to take full thirty-minute meals vary
widely from removing protection equipment to washing hands, waiting for the microwave,

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and walking to and from meal stations. It appears, therefore, that questions of liability may
not be resolvable class-wide, since whether an employees’ activities were compensable may
require a detailed factual analysis and balancing that is specific to each employee. Second,
Worsham’s experience is typical of some, but not all, putative class members.

Other

employees mention activities, such as removing protective equipment, that Worsham does not
mention, and other employees do not recount spending time navigating an oily workstation
floor. Again, these nuanced differences may be directly relevant to determining whether each
employee engaged in compensable work during unpaid meal breaks. Third, determining which
of the 3,000 potential class members are owed compensation under this theory of liability, and
how much they are owed, would likely prove to be entirely unmanageable. Not only will
factual differences between employees predominate, but variations in a single employee’s
mealtime activities from one day to the next could, on balance, lead a jury to determine that
an employee engaged in compensable work on some days but not others. Thus, extrapolating
the amount of time employees engaged in compensable work would likely prove impossible.
Since Worsham’s putative class does not meet the requirements of commonality or
typicality, and since individual issues predominate, the Court will not certify a separate class to
include employees who spent mealtime conducting these activities.
IV.

NOTICE
Plaintiffs attached a proposed “Additional Notice of Rights” to their motion. (ECF

No. 149-1.) Since this Court will grant in part and deny in part Plaintiffs’ motion and certify
a separate Automatic Deduction Class, Plaintiffs’ proposed “Additional Notice of Rights” is
insufficient notice pursuant to Rule 23(c)(2)(B). Plaintiffs will be ordered to submit a revised

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proposed notice to members of the approved Automatic Deduction Class within fifteen days
of this Order.
For the reasons stated herein, the Court enters the following:

ORDER
IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Amend Previously
Certified Class or, in the alternative, to Certify Class Claims, (ECF No. 148), is GRANTED
in part and DENIED in part. It is GRANTED with respect to claims that employees were
not paid for ordinary, or emergency work conducted during mealtimes due to Defendant’s
Automatic Deduction Policy as outlined in this Memorandum Opinion. It is DENIED with
respect to all other claims.
IT IS FURTHER ORDERED that Plaintiffs shall submit within fifteen days of this
Order a proposed Notice to be sent to members of the newly certified Automatic Deduction
class that complies with Rule 23(c)(2)(B). Defendant may, but need not, submit a response to
such proposed Notice within ten days of being served therewith.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Summary Judgment, (ECF
No. 128), is DENIED WITHOUT PREJUDICE. Plaintiffs may refile their motion within
thirty days of this Order.
This, the 2nd day of August 2022.
/s/ Loretta C. Biggs
United States District Judge

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