Creely v. HCR ManorCare, Inc. et al

Filing 100

Memorandum Opinion and Order re 34 The Motions for ConditionalCertification are granted (Creely Doc. No. 35; Conteh Doc. No. 29) Counsel are directed to submit within ten (10) days a joint letter to the Court describing the desired language of the opt-in notice to be delivered to the conditional collective action members,highlighting any disagreements on language requiring attention by the Court. Judge Jack Zouhary on 6/9/11. (C,D)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Case Nos. 3:09 CV 2879
3:10 CV 417
3:10 CV 2200

Robert N. Creely, et al.,
Plaintiffs,

* * * *

-vs-

Case No. 10 CV 270

HCR ManorCare, Inc., et al.,
Defendants.

MEMORANDUM OPINION
AND ORDER

* * * *
JUDGE JACK ZOUHARY
Sandra Conteh,
Plaintiff,
-vsAtrium Centers, LLC, et al.,
Defendants.

INTRODUCTION
Before the Court are Motions for Conditional Certification in two cases seeking collective
action status under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b) (Creely Doc. Nos.
34–35; Conteh Doc. Nos. 26–29).1 The cases present similar issues regarding Defendant employers’

1

Citations to the record are indicated by the case name followed by the document number and page number.
Documents for Conteh v. Atrium Centers, LLC et al., 3:10-cv-00270-JZ (N.D. Ohio) are referred to as
“Conteh”; documents for Creely et al. v. HCR Manorcare, Inc. et al., 3:09-cv-02879-JZ (N.D. Ohio) and
consolidated cases Krawiec v. HCR Manorcare et al., 3:10-cv-00417-JZ (N.D. Ohio) and Veksler v. HCR
Manorcare, Inc. et al., 3:10-cv-02200-JZ (N.D. Ohio) are referred to as “Creely.”

timekeeping policy of automatically deducting thirty minutes from hourly employees’ timecards when
the employee works more than a set number of hours (the “auto-deduct policy”). The disputes in
these cases, and this Court’s Opinion, add another link to the long chain of cases that have considered
conditional certification for auto-deduct policy claims as a violation of the FLSA.2
BACKGROUND
Defendants in these cases are operators of assisted living and skilled nursing facilities spread
across multiple states. These facilities employ a large number of hourly, non-exempt personnel,
including registered nurses, licensed practical nurses, certified nursing assistants, housekeeping staff,
maintenance technicians, and other patient care and administrative staff (Conteh Doc. No. 29 at 3;
Creely Doc. No. 35 at 2). Defendants had a policy of using computerized timekeeping systems,
Kronos or E-Time, that were programmed to automatically deduct a thirty-minute meal period from
hourly employees’ timecards when an employee worked a shift of more than five or six hours (Conteh
Doc. No. 29 at 5; Creely Doc. No. 35 at 4). Under this system, employees clocked in at the beginning
of their shift and clocked out at the end of their shift; they did not clock in and out for their meal
break. If an employee was unable to take an uninterrupted thirty-minute meal break, the employee
was required to fill out a form and submit it to a supervisor, who would then sign it and submit it to
payroll personnel. Payroll personnel would then adjust the employee’s timecard to reverse the
2

See, e.g., Berger v. Cleveland Clinic Found., 2007 WL 2902907 (N.D. Ohio 2007), Camesi v. Univ. of
Pittsburgh Med. Ctr., 2009 WL 1361265 (W.D. Pa. 2009), Camper v. Home Quality Mgmt., 200 F.R.D. 516
(D. Md. 2000), Carter v. Jackson-Madison Cnty. Hosp. Dist., 2011 WL 1256625 (W.D. Tenn. 2011), Cason
v. Vibra Healthcare, et al., 2011 WL 1659381 (E.D. Mich. 2011), Colozzi v. St. Joseph’s Hosp. Health Ctr.,
595 F. Supp. 2d 200 (N.D.N.Y. 2009), Frye v. Baptist Mem’l Hosp., 2010 WL 3862591 (W.D. Tenn. 2010),
Kuznyetsov v. West Penn Allegheny Health Sys., Inc., 2009 WL 1515175 (W.D. Pa. 2009), Ledbetter v. Pruitt
Corp., 2007 WL 496451 (M.D. Ga. 2007), Lindberg v. UHS of Lakeside, LLC, --- F. Supp. 2d ----, 2011 WL
204832 (W.D. Tenn. 2011), Miller v. Jackson, 2011 WL 1060737 (M.D. Tenn. 2011), Saleen v. Waste Mgmt.,
Inc., 649 F. Supp. 2d 937 (D. Minn. 2009); Wolman v. Catholic Health Sys. of Long Island, Inc., 2011 WL
1741905 (E.D.N.Y. 2011).

2

automatically deducted thirty minutes so that the employee would be properly paid for all time
actually worked by the employee (Conteh Doc. No. 29 at 6; Creely Doc. No. 35 at 5).
Plaintiffs in both cases make nearly identical claims under the FLSA: due to Defendants’
implementation of the auto-deduct policy, Plaintiffs and the putative collective action members were
denied statutory overtime wages in violation of the FLSA’s minimum wage requirements (Creely
Doc. No. 17 at 13; Conteh Doc. No. 22 at 9). Specifically, Plaintiffs commonly allege Defendants
(1) implemented a company-wide auto-deduct policy and practice for all hourly, non-exempt
employees; (2) illegally shifted the burden of monitoring “compensable work time” to individual
employees by requiring the employees to cancel the auto-deducted thirty minutes when they did not
receive an “uninterrupted meal break;” (3) failed to train or inform the hourly employees or
management as to what constitutes an uninterrupted meal break; and (4) failed to monitor or ensure
that hourly employees received an uninterrupted meal break despite the automatic deduction (Creely
Doc. No. 35 at vi; Conteh Doc. No. 29 at 1).
The Court heard oral argument regarding Plaintiffs’ Motions for Conditional Certification in
both cases, with questions provided to counsel prior to argument (Creely Doc. No. 86). The focus of
the questions at argument attempted to clarify two somewhat unique procedural considerations present
in these cases.
First, while the Sixth Circuit generally uses a two-stage approach for certifying FLSA
collective actions, the posture of these cases “splits the difference” between the two stages as
commonly defined. Generally, the burden at the first stage for conditionally certifying a collective
action, and thereby allowing the distribution of opt-in notices, is fairly lenient and can even be met
with a well-pleaded complaint prior to conducting discovery. The second stage occurs after the opt-in

3

notices have been sent, responses received, and discovery has concluded, at which point plaintiffs
must meet a much stricter standard to proceed. Based on a multi-factor review, the court may
decertify the proposed conditional collective action if it cannot be shown that plaintiffs are “similarly
situated.” Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546–47 (6th Cir. 2006).
In both of these cases, no opt-in notices have been sent, but the parties have conducted limited
discovery on the putative collective action claims. Based on these circumstances, the parties are past
the first stage that requires Plaintiffs to meet the lenient standard regarding the factual basis for their
allegations but are not yet to the stricter second stage at the close of the discovery and opt-in notice
period. Therefore, the first task for this Court is to determine the appropriate evidentiary burden for
Plaintiffs in this hybrid conditional certification scenario.
Second, Plaintiffs’ evidence at this juncture focuses primarily on Defendants’ implementation
of auto-deduct policies, but offers little direct evidence of similar claims made by other individual
employees that would support an inference that there is a group of similarly situated plaintiffs.
Plaintiffs pursue a “top-down” discovery approach, instead of the more common “bottom-up”
approach of finding additional representative plaintiffs to support their claims that a collective action
group exists. That is, Plaintiffs deposed a number of Defendants’ executives and corporate managers
in an attempt to show the adoption and implementation of the auto-deduct policies were flawed
generally, which in turn would implicitly suggest that there must be a group of similarly situated
putative plaintiffs because the policy itself was improper in its formulation or implementation.
As a result, Defendants argue that, even if Plaintiffs have a low burden to show a similarly
situated class of employees exists, Plaintiffs have failed to show there is a putative class of similarly
situated individuals because the only pieces of evidence Plaintiffs have provided are their own

4

affidavits in support of the allegations in their Complaint and general evidence that Defendants
implemented an auto-deduct policy, a policy which Defendants claim is not facially illegal or
improper according to the Department of Labor (Conteh Doc. No. 34 at 2; Creely Doc. No. 78 at 1).
Accordingly, this Court must determine whether Plaintiffs’ top-down evidence is sufficient, under the
to-be-determined standard mentioned above, to conditionally certify a class in each case and allow
the respective Plaintiffs to distribute opt-in notices.
FLSA CONDITIONAL CERTIFICATION STANDARD
The FLSA provides a private cause of action against an employer “by any one or more
employees for and in behalf of himself or themselves and other employees similarly situated.” 29
U.S.C. § 216(b) (emphasis added). Collective actions brought by employees under the FLSA require
putative class members to opt into the action, or generally termed, the “class.”3 See 29 U.S.C.
§ 216(b) (“No employee shall be a party plaintiff to any such action unless he gives his consent in
writing to become such a party and such consent is filed in the court in which such action is
brought.”). The statutory standard for bringing a collective action under the FLSA is that the opt-in
plaintiffs are “similarly situated.” Id. “Similarly situated” does not mean plaintiffs need to be
identical; however, it is plaintiffs’ burden to show the claims of the putative class are similarly
situated. O’Brien v. Ed Donnelly Enter., Inc., 575 F.3d 567, 584 (6th Cir. 2009).

3

Though a group of plaintiffs in a collective action under the FLSA is not technically a “class” as defined under
Federal Civil Rule 23, for simplicity, this Opinion uses the term “class” as a short-form reference to the
putative group of opt-in plaintiffs in the proposed collective actions.

5

General FLSA Certification Process
Traditionally, courts in the Sixth Circuit follow a two-stage certification process to determine
whether a proposed group of plaintiffs is “similarly situated” for the purposes of the statute’s
requirements. The first, or “notice” stage, takes place at the beginning of discovery with a focus on
determining whether there are plausible grounds for plaintiffs’ claims. If so, plaintiffs are permitted
to solicit opt-in notices, under court supervision, to potential plaintiffs such as current and former
employees of defendant. The second stage occurs after “all of the opt-in forms have been received
and discovery has concluded.” Comer, 454 F.3d at 546 (internal quotation and citation omitted).
The first stage is “fairly lenient,” requiring only that plaintiffs show a colorable basis for their
claim that a class of similarly situated plaintiffs exists. White v. MPW Indus. Serv., Inc., 236 F.R.D.
363, 366–67 (E.D. Tenn. 2006) (internal citations omitted); Olivo v. GMAC Mortg. Corp., 374 F.
Supp. 2d 545, 548 (E.D. Mich. 2004). Some courts have held that this burden can be met solely upon
allegations in the complaint, Belcher v. Shoney’s, Inc., 927 F. Supp. 249, 251 (M.D. Tenn. 1996)
(citation omitted), while others have required a “modest factual showing.” Pritchard v. Dent Wizard
Int’l Corp., 210 F.R.D. 591, 595–96 (S.D. Ohio 2002) (quotation and citation omitted).
On the other hand, the second-stage review is understandably more stringent as it occurs after
the receipt of completed opt-in notices and completed discovery. At this point, the court considers
all the evidence, in conjunction with the demographic data of the putative opt-in plaintiffs, to
determine whether the assembled class is sufficiently “similarly situated” to continue as a collective
action or whether the putative class should be “decertified,” leaving plaintiffs free to pursue their
claims on an individualized basis. The primary factors considered in a second-stage analysis are: (1)
the disparate factual and employment settings of the individual opt-in plaintiffs; (2) the various

6

defenses available to defendants with respect to individual plaintiffs; and (3) fairness and procedural
considerations. Olivo, 374 F. Supp. 2d at 548 n.2 (citing Vaszlavik v. Storage Tech. Corp., 175 F.R.D.
672, 678 (D. Colo. 1997)).
Beyond the Two-Stage Certification Process
However, when the parties have been permitted to conduct some limited discovery to
determine whether a class of similarly situated plaintiffs may exist, such as in the cases before this
Court, courts have had a difficult time elucidating an intermediate, or hybrid, standard that falls
between the lenient first-stage and the strict second-stage review. In their briefing and in argument,
Plaintiffs urge the Court to hew closely to the lenient standard used in a first-stage analysis while
Defendants advocate a higher hurdle than simply a “modest factual showing.”
Some courts have approached this intermediate standard by improvising, requiring more than
just the pleadings and plaintiffs’ affidavits, “hold[ing] plaintiffs to a higher standard of proof.”
Jimenez v. Lakeside Pic-N-Pac, L.L.C., 2007 WL 4454295, at *2 (W.D. Mich. 2007). What this
higher standard of proof is, and what should be considered by this Court, remains unclear. Some
courts, such as in Jimenez, appear to restate the “modest factual showing” standard, stating the court
would review the pleadings, affidavits, and “evidence gleaned through discovery,” in an attempt to
“assure that there is some factual basis for plaintiffs’ claims” before allowing plaintiffs to send opt-in
notices. Id. at *3 (emphasis added).
A California district court summarized three different intermediate approaches for courts in
circuits that follow a two-stage certification process. Kress v. PricewaterhouseCoopers, LLP, 263
F.R.D. 623, 628 (E.D. Cal. 2009). The court in Kress noted some courts have held the lenient
standard does not apply when evidence is available, citing two cases for the proposition that when the

7

parties have completed “substantial discovery,” the court may proceed directly to the second stage.
Kress, 263 F.R.D. at 628 (citing Pfohl v. Farmers Ins. Grp., 2004 WL 554834, at *1, *3 (C.D. Cal.
2004) and Basco v. Wal-Mart Stores, Inc., 2004 WL 1497709, at *4 (E.D. La. 2004)). Other courts
have held that when significant evidence is available, an intermediate standard applies. Kress, 263
F.R.D. at 628 (citing Holt v. Rite Aid Corp., 333 F. Supp. 2d 1265, 1274 (M.D. Ala. 2004)). The
intermediate standard “departed from the lenient notice stage standard by considering defendant’s
evidence in addition to plaintiff’s affidavits and allegations, but the court explicitly . . . did not weigh
the evidence.” Kress, 263 F.R.D. at 628. The third approach, similar to the court in Jimenez above,
simply rejects the lenient standard without invoking the second stage or articulating an alternative.
Kress, 263 F.R.D. at 628–29 (citing Davis v. Charoen Pokphand (USA), Inc., 303 F. Supp. 2d 1272,
1276 (M.D. Ala. 2004); White v. Osmose, Inc., 204 F. Supp. 2d 1309, 1313 n.2 (M.D. Ala. 2002); Ray
v. Motel 6 Operating, Ltd. P’ship, 1996 U.S. Dist. LEXIS 22565 (D. Minn.1996)).
One district court in Kansas, in a situation where the parties had conducted three months of
discovery and thirty individuals had filed opt-in consent forms, explained that plaintiffs were clearly
beyond the “notice” stage but the record was not sufficiently developed to permit an analysis under
the higher standard used after discovery was complete. Thiessen v. Gen. Elec. Capital Corp., 996 F.
Supp. 1071, 1080–81 (D. Kan. 1998). The court thus adopted a somewhat confusingly termed
“intermediate approach” to analyze the “similarly situated” issue where: “[t]o the extent the record
has been developed, the court incorporates an analysis of the relevant factors found in post-discovery
cases. The court actually makes its determination to provisionally certify, however, under a more
lenient standard in light of deficiencies in the record.” Id. at 1081. The court then went on to consider
the three primary factors traditionally used under the more strict second-stage analysis to determine

8

if there is a “similarly situated” class: (1) whether there are disparate factual and employment settings;
(2) defenses available to defendants; and (3) fairness and procedural considerations. Id. at 1081–84.
Though not explicit in its analysis, it appears the Thiessen court was attempting to overlay the lenient
factual showing typically required under a first-stage analysis on top of the more stringent secondstage analysis factors.
Even sister district courts in this Circuit seem unable to agree on a common explanation of an
intermediate standard. The court in Bowman v. Crossmark, Inc., 2010 WL 2837519 (E.D. Tenn.
2010), considering the parties’ “considerable discovery” when making a conditional certification
decision, stated: “a more demanding standard is applied after considerable discovery has been
conducted, and this review standard includes a consideration of the factors employed at the second
or decertification stage of the analysis.” Id. at *5. Yet despite this statement, the court’s discussion
of a more demanding standard is dicta because the court held that plaintiffs failed to meet even the
lenient first-stage standard. Id. at *6.
In contrast, the court in Olivo v. GMAC Mortg. Corp., 374 F. Supp. 2d 545, 548 n.1 (E.D.
Mich. 2004), required only a modest factual showing despite having evidence from a period of limited
discovery. Similar to the cases before this Court, the court in Olivo “afforded Plaintiffs a period of
discovery solely on the issue of whether or not this action should proceed as a collective action.” Id.
The court went on to state: “Accordingly, the Court requires Plaintiffs to demonstrate ‘modest’ factual
support for the class allegations in Plaintiffs’ Complaint, rather than allow Plaintiffs to simply rely
upon the allegations contained in their Complaint.” Id. In order to meet this standard, plaintiffs “must
simply ‘submit evidence establishing at least a colorable basis for their claim that a class of “similarly
situated” plaintiffs exists’” and the court considers “whether potential plaintiffs were identified;

9

whether affidavits of potential plaintiffs were submitted; . . . whether evidence of a widespread [] plan
was submitted[,] . . . and whether a manageable class exists.” Id. at 548 (internal citations omitted).
Despite the lenient standard, the court in Olivo ultimately held that plaintiffs were not eligible for
conditional certification based upon a statutory outside-sales exemption defense that prevented
plaintiffs from demonstrating a common policy or plan. Id. at 551.
Adding one more voice to the discussion, a Michigan district court stated: “Where the
plaintiffs have been afforded discovery on the issue of whether or not the action should proceed as
a collective action, courts typically apply a more restrictive, but still lenient standard, requiring the
plaintiffs to demonstrate at least ‘modest’ factual support for the class allegations in their complaint.”
Pacheco v. Boar’s Head Provisions Co., Inc., 671 F. Supp. 2d 957, 960 (W.D. Mich. 2009) (citing
Jimenez, 2007 WL 4454295; Olivo, 374 F. Supp. 2d 545). The parties in Pacheco had been granted
a period of limited discovery focused on the issue of certification. Using this “more restrictive, but
still lenient standard,” the court in Pacheco indicated it would “base its certification determination
on the evidence rather than the pleadings. The Court will consider whether there is evidence of a
widespread discriminatory plan, and whether, as a matter of sound case management, a manageable
class exists.” Id.
Tellingly, other courts that have considered Pacheco, in cases involving the conditional
certification question after the parties had conducted limited discovery, are unable to agree on whether
Pacheco requires only a lenient, first-stage modest factual showing or a more rigorous combined first
and second-stage showing. Compare Cunningham v. Elec. Data Sys. Corp., --- F. Supp. 2d ----, 2010
WL 5076703, at *5–7 (S.D.N.Y. 2010) (reviewing cases, including Pacheco, from district courts in
various circuits that have considered whether to use a first or second-stage analysis for conditional

10

certification following limited discovery), with Shockey v. Huhtamaki, Inc., 730 F. Supp. 2d 1298,
1305 (D. Kan. 2010) (stating that the court in Pacheco appeared to “collapse[] the two-step analysis
and applied both steps simultaneously, even weighing the evidence and making credibility
determinations”). The combination of a lenient first-stage standard combined with limited discovery
led the court in Cunningham to apply the first-stage test until at least the completion of fact discovery,
stating that the court would “apply the more lenient first-stage test, although it will consider the
evidence obtained in discovery and submitted by both parties in that analysis.” Cunningham, 2010
WL 5076703, at *7; see also Gortat v. Capala Bros., Inc., 2010 WL 1423018, at *10 (E.D.N.Y. 2010)
(considering conditional certification after some discovery had taken place, the court refused to apply
the second-stage standard, stating: “The heightened scrutiny standard is only appropriate after the
opt-in period has ended and the court is able to examine whether the actual plaintiffs brought into the
case are similarly situated.”).
A Hybrid Standard Between Stages One and Two
Thus, despite the numerous courts that have dealt with this issue, the question remains -- what
is the standard this Court should apply in deciding whether to conditionally certify the proposed
classes when the parties have conducted several months of limited discovery on the certification
issue?
As a start, it is helpful to summarize several observations from the above cases. First, courts
generally agree that allowing the parties to conduct some targeted discovery regarding the conditional
certification question takes the question beyond the stage one evidentiary boundaries of the
complaint’s allegations and supporting affidavits. See Pacheco, 671 F. Supp. 2d at 960. Second, once
beyond the stage one evidentiary boundaries, the courts should consider the evidence produced by

11

plaintiff and defendant with the explicit acknowledgment that the body of evidence is necessarily
incomplete. See Kress, 263 F.R.D. at 629. Third, when reviewing the assembled evidence, the court’s
analysis is confined to evaluating whether the proposed class is “similarly situated” and does not
touch upon the merits of plaintiffs’ claims. See Olivo, 374 F. Supp. 2d at 548; Brabazon v. Aurora
Health Care, Inc., 2011 WL 1131097, at *4 (E.D. Wis. 2011) (“[T]he conditional certification inquiry
should not delve into the merits of a plaintiff’s claim.”) and O’Brien, 575 F.3d at 585 (analysis is
primarily focused on the “unified [] common theories of defendants’ statutory violations,” even if the
proof of these theories may be individualized and distinct and without the court evaluating the merits
of the alleged statutory violations at this conditional certification juncture). And fourth, litigation and
judicial efficiency concerns would point toward the court considering, but not requiring plaintiffs to
show, the factors commonly considered under stage two in performing a “similarly situated” analysis,
resolving any gaps or doubts in the evidence in favor of plaintiffs based upon the incomplete, although
potentially substantial, factual record in light of the equitable goals and policies embodied in the
FLSA. See Kress, 263 F.R.D. at 629 (citing Leuthold v. Destination Am., Inc., 224 F.R.D. 462,
467–68 (N.D. Cal. 2004), a lengthy and well-reasoned review of the reasons for plaintiff’s low burden
prior to the second-stage analysis after discovery has closed and the opt-in notices have been
returned).
Using these general propositions, this Court believes that a hybrid standard, similar to the one
envisioned by the court in Thiessen, which combines the lenient standard with some consideration of
the stage-two factors, and is augmented by the practical considerations mentioned by other district
courts, strikes the proper balance between the traditional stage-one and two standards. Accordingly,
this Court will consider the evidence submitted by both parties but, because the cases have not yet

12

progressed to stage two and the Court only has an incomplete factual record, it is appropriate to
require Plaintiffs to make a modest “plus” factual showing that there is a group of potentially similarly
situated plaintiffs that may be discovered by sending opt-in notices.
However, in order to provide some measurable standard by which to judge if Plaintiffs have
made a sufficient modest “plus” factual showing, and to prevent the absurd result of granting the
parties time to do discovery on the conditional certification question but subsequently imposing no
incremental hurdle in determining whether Plaintiffs may send opt-in notices, this Court will compare
Plaintiffs’ allegations set forth in their Complaint with the factual record assembled through discovery
(Doc. Nos. 34–69) to determine whether Plaintiffs have made sufficient showing beyond their original
allegations that would tend to make it more likely that a class of similarly situated employees exists.
In other words, the Court will review whether Plaintiffs have advanced the ball down the field -showing that it is more likely that a group of similarly situated individuals may be uncovered by
soliciting opt-in plaintiffs. And, because the Court will continue to use a lenient standard, Plaintiffs
need not have moved the ball far down the field, but they need to have shown some progress as a
result of the discovery as measured against the original allegations and defenses.
How much progress Plaintiffs have made will be considered in conjunction with Defendants’
evidence and in the context of Plaintiffs’ unshifting burden to prove their claims. However, the Court
does not weigh the relative merits of the parties’ claims at this conditional certification stage. A full
and complete merit review of both sides’ arguments is best preserved for the detailed and strict review
conducted at stage two, when the Court and the parties have the benefit of a fully developed factual
record.

13

Parties’ Arguments Regarding the Applicable Standard
Having set forth the above standard, a few comments are necessary to address the parties’
arguments with respect to the standard relevant to these pending cases. First, Plaintiffs argue that it
would be inconsistent for this Court to now require Plaintiffs to produce evidence beyond the lenient,
or modest factual showing, traditionally required for initial certification when the agreement between
the parties was predicated on conducting limited discovery in express anticipation of conditional
certification (Creely Doc. No. 79-1 at 5). In Creely and Contech, the parties were explicitly given
three-plus months to conduct limited discovery regarding class certification (Creely Doc. No. 16 at
2–3; Conteh Doc. No. 16 at 2).
Based on the standard announced above, this Court believes Plaintiffs’ concerns have been
adequately addressed and there has been no “bait and switch” such that the Court is now requiring
Plaintiffs to meet a higher-than-expected standard. The standard against which Plaintiffs’ evidence
will be evaluated remains lenient, with the burden focused on advancing their own original allegations
of a sufficiently similar class, not on refuting Defendants’ arguments and defenses. On the other
hand, it is certainly no surprise to Plaintiffs that when this Court specifically grants the parties time
for the purpose of conducting limited discovery, that this Court will require Plaintiffs to make some
small showing that advances their claims and pushes the proverbial ball down the field. If there was
no expectation of advancing Plaintiffs’ claims, the entire exercise of limited discovery would be
meaningless. Plaintiffs must provide the Court with some additional evidence, even a small amount,
that would tend to make it more likely that a similarly situated class exists.
On the other hand, Defendants argue a lenient standard or a modest factual showing is not a
sufficiently high hurdle for Plaintiffs to overcome considering the several months spent on limited

14

discovery regarding the conditional certification question. This Court finds Defendants’ arguments
without merit. Defendants appear to fault Plaintiffs for not moving for initial notice promptly enough
and therefore argue Plaintiffs forfeited their right to have their claims reviewed under the lenient
standard (Creely Doc. No. 78 at 17). While Plaintiffs may not have immediately moved for
preliminary notice, the parties jointly agreed to conduct a period of limited discovery -- Defendants
cannot now turn that mutual agreement into a sword to use against Plaintiffs by faulting them for not
moving for conditional certification earlier.
The Creely Defendants also cite two cases, Basco v. Wal-Mart Stores, Inc., 2004 WL 1497709
(E.D. La. 2004), and Pfohl v. Farmers Ins. Grp., 2004 WL 554834 (C.D. Cal. 2004), that purportedly
impose the heavier stage-two burden on the respective plaintiffs after they were granted time to
conduct limited discovery on the conditional certification issue (Creely Doc. No. 78 at 17). The
Conteh Defendants argue a similar proposition, albeit less vigorously (Conteh Doc. No. 34 at 5).
However, neither cited case is from a court in this Circuit and even other courts in the respective
circuits of Basco and Pfohl have refused to follow those holdings by imposing a higher burden on
plaintiffs after a period of discovery. See, e.g., Kress, 263 F.R.D. at 629 (“With the exception of
Pfohl, the court is not aware of any district court within the Ninth Circuit to have followed these cases
[imposing a second-stage analysis following limited discovery]. Courts within this circuit instead
refuse to depart from the notice stage analysis prior to the close of discovery.”) This Court’s review
of these cases and the citation history of these cases also shows that a number of courts have declined
to follow or have distinguished these cases with respect to their imposition of a higher burden on
plaintiffs.

15

Defendants next argue that Plaintiffs should have to meet a higher standard and the Court
should require more than a “handful of affidavits that support [Plaintiffs’] position” (Creely Doc. No.
78 at 17). White v. Osmose, Inc., 204 F. Supp. 2d 1309, 1313 n.2 (M.D. Ala. 2002). That is precisely
what this Court is requiring of Plaintiffs under the standard described above. While Plaintiffs have
filed their own personal affidavits in moving for conditional certification, the Court is reviewing the
numerous other exhibits filed in support of the Motions to determine whether Plaintiffs have provided
any factual support beyond their own statements and the allegations in their respective Complaints
(see Creely Doc. Nos. 34–69; Conteh Doc. Nos. 28–30, 34, 35).
Lastly, HCR Manorcare, Inc. (“HCR”) attempts to raise arguments that Plaintiffs’ proposed
class is unmanageable or that there are too many location-specific nuances to account for in a
collective action (Creely Doc. No. 78 at 7–12). These arguments are premature. Even under the
hybrid standard above, the Court is simply making a determination on whether there is enough
evidence to support sending out notifications to a potential similarly situated opt-in class. The
arguments regarding whether the collective action opt-in group is manageable or whether individual
issues predominate are properly addressed under the more stringent stage-two analysis. See Olivo,
374 F. Supp. 2d at 548 n.2 (defining the stage-two considerations as: (1) the disparate factual and
employment settings of the individual opt-in plaintiffs; (2) the various defenses available to
defendants with respect to the individual plaintiffs; and (3) fairness and procedural considerations).
A stage-two analysis, after all of the opt-in plaintiffs have been identified, will be the proper time for
HCR to renew arguments about the variations among its facilities and staffing.

16

ANALYSIS OF PLAINTIFFS’ EVIDENCE
I.

CREELY V. HCR MANORCARE, INC.
Introduction
Defendant HCR is a nationwide provider of short- and long-term medical and rehabilitation

care. HCR provides care through its operation of more than three hundred facilities under several
trade names, employing roughly 44,000 non-exempt hourly employees (Creely Doc. No. 78 at 1).
HCR’s facilities are generally organized into two divisions -- assisted living and skilled nursing (id.).
Between these two divisions and the specific population served by each specific facility, individual
HCR facilities may have widely varying resident populations, staffing needs, and contractual and legal
requirements (id. at 2). However, HCR develops company-wide policies, including compensation and
training, at its headquarters in Toledo, Ohio; each facility also has its own local management team and
human resources support personnel responsible for implementing and complying with the HCR
corporate policies (id.).
Plaintiffs Robert Creely and Diane Krawiec were non-exempt hourly employees at HCR’s
facility, HCR Manor Care Services -- Yardley, in Yardley, Pennsylvania (Creely Doc. No. 17 at 4).
Creely also worked at HCR’s facility in Huntingdon Valley, Pennsylvania (Creely Doc. No. 36 at 1).
Both Creely and Krawiec worked as licensed practical nurses (“LPNs”) (Creely Doc. No. 35 at 8–9).
Plaintiff Alina Veksler was a non-exempt hourly employee at HCR’s facility in Northbrook, Illinois.
Veksler first worked for HCR as a Business Office Manager and later as an Admissions Coordinator
(Veksler v. HCR Manorcare, Inc., 3:10-cv-2200-JZ (N.D. Ohio), Original Complaint, Doc. No. 1 at
3). Creely and Krawiec filed their Complaint in this Court; Veksler filed her Complaint in the
Northern District of Illinois. Through a joint motion by all Plaintiffs and Defendants, the cases were

17

consolidated before this Court because the Complaints alleged the same basic violations of the FLSA
(Creely, Doc. No. 30).
Creely Plaintiffs’ Allegations
In light of the conditional certification standard set forth above, the Court’s analysis begins
with Plaintiffs’ allegations. The primary basis for Plaintiffs’ Complaint is HCR’s use of a policy that
automatically deducted a thirty-minute meal break from hourly employees’ timecards when an
employee worked a shift of more than a certain length (the “Automatic Meal Break Deduction
Policy”) (Creely Doc. No. 17 at 6). HCR implemented this policy through the use of a computerized
timekeeping system, Kronos, in each of its facilities and all HCR non-exempt hourly employees are
subject to the Meal Break Deduction Policy (id.). If an employee was unable to take an uninterrupted
thirty-minute meal break, the employee was responsible for submitting a “missed punch” form to the
employee’s supervisor for a signature. The supervisor would then submit the form and payroll
personnel would reverse the thirty-minute deduction for that employee.
Plaintiffs allege this auto-deduct meal break process improperly and illegally shifts the burden
to employees to ensure “non-qualifying” meal breaks (i.e. meal breaks of less than thirty minutes or
interrupted meal breaks) are not deducted from their pay (id. at 7). Plaintiffs also allege HCR has
failed to properly train hourly employees or their managers as to what constitutes an uninterrupted
meal break (Creely Doc. No. 35 at vi).
Plaintiffs allege HCR implemented a corporate policy that violated the FLSA in four basic
ways (Creely Doc. No. 17 at 6–8):
•

Automatically deducting thirty-minute meal breaks from all hourly employees’
timecards, regardless of whether the employee performed compensable work
during his or her meal break;

18

•

Improperly shifting the burden of monitoring “compensable work time” to
employees by requiring employees to individually alert HCR management
when the employee did not receive an uninterrupted meal break;

•

Failing to train hourly employees or their managers on what constitutes an
“uninterrupted meal break” under the FLSA; and,

•

Failing to instruct or require managers to monitor if hourly employees were
unable to take an uninterrupted meal break.

Before considering the factual support submitted by Plaintiffs, it is worth noting that Plaintiffs’
Complaint differs from many other FLSA auto-deduct cases. Plaintiffs’ claims in this case are not
the same as the policy-to-violate-the-policy claims that have appeared in many other FLSA cases.
See, e.g., Saleen v. Waste Mgmt., Inc., 2009 WL 1664451, at *5 (D. Minn. 2009) (“Plaintiffs’ offer
of proof in support of their motion appears to advance the theory that [the employer’s] enforcement
of the automatic-deduction policy created a policy-to-violate-the-policy.”) (emphasis added). Instead,
Plaintiffs’ argument appears to be that while the basic tenet of HCR’s meal-break policy, the thirtyminute auto-deduction, is not improper per se, HCR’s method of implementing the policy is the
essence of Plaintiffs’ Complaint. Therefore, this Court’s review will focus on whether Plaintiffs’ topdown discovery approach has produced sufficient facts to advance their claims that HCR failed to
properly implement the auto-deduct policy such that this Court should grant conditional certification
of the proposed collective action.
Creely Plaintiffs’ Factual Support
This Court has reviewed the voluminous set of documents, comprising thirty-three docket
entries, produced by Plaintiffs in support of their Motion (Creely Doc. Nos. 36–69), and, for
convenience, has grouped the materials into three main categories. These are: (1) Plaintiffs’

19

Declarations and depositions, (2) depositions of various HCR personnel, and (3) internal HCR
documents regarding the auto-deduct policy.4
Plaintiffs Testimony
The first set of documents submitted in support of Plaintiffs’ allegations are declarations
submitted by named Plaintiffs Creely, Krawiec, and Veksler, along with deposition transcripts of
Creely and Krawiec (Creely Doc. Nos. 36–38, 45–46). Many of these statements affirm or restate the
basic allegations of the Complaint -- namely, all hourly employees were subject to the auto-deduct
policy, all hourly employees were subject to the deduction whether or not they received an
uninterrupted thirty-minute meal break, and that Plaintiffs had been required to work through their
meal breaks and were not properly compensated (see Creely Doc. No. 36 at 3–4, 6; Doc. No. 37 at
2; Doc. No. 38 at 2).
Of greater interest to this Court’s analysis are other aspects of Plaintiffs’ declarations that
might support Plaintiffs’ claims that the auto-deduct policy constituted a “unified [] common theor[y]”
of HCR’s alleged FLSA violations. O’Brien, 575 F.3d at 585. Specifically, Plaintiffs’ declarations
allege:

4

Plaintiffs’ Memorandum is far from “user-friendly,” particularly considering the amount of discovery materials
provided in support of their argument. By its very nature, a determination of whether to conditionally certify
a collective action class is fact-intensive. However, Plaintiffs’ Memorandum fails to connect the factual bases
with their legal arguments. Instead, Plaintiffs recite numerous “Pertinent Facts,” with copious citations to the
record, in pages 1–8 of the Memorandum; then present their legal arguments as to why the Court should grant
conditional certification on pages 10–16, replete with numerous case citations, but zero citations to the factual
record. It is left to the Court to connect the dots -- to search for which facts support which allegations -- to
evaluate Plaintiffs’ base conclusion: “Plaintiffs have offered sufficient evidence . . . for this Court to authorize
notice.” (Creely Doc. No. 35 at 12).

20

•

Plaintiffs regularly worked through their meal breaks and had their meal
breaks interrupted and were not compensated for this time due to the autodeduct policy; Plaintiffs witnessed that other employees also regularly worked
through their meal breaks or had their meal break interrupted (Creely Doc. No.
36 at 3; Doc. No. 37, at 2, 5–6);

•

HCR does not have a policy to ensure employees are receiving the allotted
thirty-minute meal break despite subjecting all hourly employees to the autodeduct policy (Creely Doc. No. 36 at 2; Doc. No. 37 at 2, 4);

•

HCR fails to relieve employees from their duty station to allow them to take
an uninterrupted meal break, often requiring employees, including Plaintiffs,
to eat at their duty station and on occasion not being able to eat at all during
their shift (Creely Doc. No. 37 at 3);

•

Plaintiffs and other hourly employees believed that they could only submit a
form to cancel the auto-deduction if they had no opportunity at all to eat a meal
(Creely Doc. No. 36 at 2);

•

HCR employees, including Plaintiffs, regularly ate their meal at their desks
while working (Creely Doc. No. 36 at 2; Doc. No. 37 at 4; Doc. No. 38 at 2);

•

HCR employees considered themselves to have taken a meal break if they
were able to take a five to ten minute break (Creely Doc. No. 36 at 2);

•

Plaintiffs informed their supervisors that they were not receiving their meal
breaks (Creely Doc. No. 36 at 3);

•

Supervisors told Plaintiffs that turning in missed punched forms for missing
meal breaks was not encouraged and that forms might get rejected (Creely
Doc. No. 36 at 3);

•

Supervisors observed and knew that Plaintiffs and other hourly employees
were routinely working through their meal breaks (Creely Doc. No. 38 at 2;
Doc. No. 37 at 4–5; Doc. No. 36 at 4);

•

HCR’s failure to properly staff work shifts resulted in employees continuing
to work after clocking out and supervisors knew that employees would have
to work through their meal breaks to accomplish all assigned tasks (Creely
Doc. No. 36 at 4; Doc. No. 37 at 3–5);

21

•

Cancellations of missed meal breaks by employees are not common because
it is HCR’s policy that if the employee gets even a short break to eat, then that
employee was considered to have a meal break; employees are also regularly
not compensated for interrupted meal breaks (Creely Doc. No. 36 at 5);

The case law regarding the weight this Court should attribute to Plaintiffs’ declarations in
support of their claims is, at best, mixed. On one hand, some courts have held such declarations, in
which the named plaintiffs witnessed or believed other employees worked through their meal breaks
without receiving compensation, do not help meet the burden of showing a class of similarly situated
employees exists. Landsberg v. Acton Enters., 2006 WL 3742221, at *3 (S.D. Ohio 2006) (holding
that speculation that other employees working under other supervisors were not properly paid is
insufficient to justify notice to the class).
On the other hand, other courts have held that such affidavits or declarations, even when they
contain assertions about other employees’ experiences, in conjunction with a factually detailed
complaint, are sufficient to conditionally certify a collective action. See Carter v. Jackson-Madison
Cnty. Hosp. Dist., 2011 WL 1256625, at *16–17 (W.D. Tenn. 2011) (“[T]he Court finds that the
factually-detailed complaint, affidavit and consent form of the named plaintiff, and affidavits and
consent forms of two additional employees of the Defendant are sufficient to make a ‘modest factual
showing’ that [named plaintiff] is similarly situated to prospective class members. . . . [T]he Court
need not decide this unsettled issue [whether the plaintiffs’ affidavits contain inadmissible evidence
about the experiences of other employees] because it is convinced that the [three employee-plaintiff]
affidavits present admissible evidence based on their own personal knowledge.”) (citations omitted).
This Court finds Plaintiffs’ declarations are more akin to supplemental pleadings, and do little
to advance the claims in the Complaint. Many of the statements in the declarations simply reiterate
or give slightly more color to the primary claims advanced by Plaintiffs -- namely that HCR
22

implemented the auto-punch policy, some coworkers were not properly compensated under the policy,
and HCR managers knew, or should have known, that hourly employees may not have been properly
compensated.
HCR Testimony
The second set of materials considered by the Court are the deposition transcripts of various
managers and executives of HCR. Because of Plaintiffs’ decision to pursue a top-down discovery
approach, this is where the Court would expect the proverbial meat of Plaintiffs’ support for their
claims. And on this point, Plaintiffs are successful.
Plaintiffs submit testimony from the following individuals:
•

Tammy Barker, Assistant Vice President of Quality Support Services (Creely
Doc. No. 39);

•

Mary Brownell, Corporate Paralegal (Creely Doc. No. 40);

•

Pauline Coram, Director of Executive Learning (Creely Doc. No. 41);

•

Ronnie England, Jr., Director of Compensation and Human Resources Systems
Support (Creely Doc. No. 42);

•

Kathleen Hutchison, Director of Safety and Human Resources Operations
Support (Creely Doc. No. 43); and,

•

Gary Mierzwiak, Director of Information Technology (Creely Doc. No. 44).

Each of these individuals was designated by HCR under Federal Civil Rule 30(b)(6) to testify
regarding matters within that individual’s particular bailiwick as a representative for HCR’s corporate
policies. This Court will highlight the relevant supporting facts from the depositions as they relate
to Plaintiffs’ claims.

23

First, the testimony supports Plaintiffs’ claims that HCR implemented a company-wide policy
to automatically deduct thirty-minute meal breaks from all hourly employees’ timecards, adding
credence to Plaintiffs’ claim that a group of similarly situated employees exists across many of HCR’s
facilities.
Based on the testimony of England, HCR’s Director of Compensation, HCR implemented the
auto-punch policy in 2004 (Creely Doc. No. 42 at Tr. 103–04). The auto-punch policy was
implemented at HCR skilled nursing and assisting living facilities nationally, with the exception of
facilities in California and Wisconsin, covering 44,000 employees (id. at Tr. 108–11, 127–28). The
“vast majority” of all those employees, with the exception of approximately a dozen senior officers,
are employed by Heartland Employment Services, LLC, a wholly-owned subsidiary of HCR (Creely
Doc. 40, at Tr. 9–10). If a particular HCR facility did not implement the auto-deduct policy, that
would have been in contravention of HCR’s nationwide policy (Creely Doc. No. 42 at Tr. 110–11).
England also confirmed that it was ultimately the employee’s responsibility to alert payroll
if the employee had not received a meal break and therefore should be compensated. An employee
who missed a meal break would fill out a punch form and submit it to a supervisor for a signature, and
the form would then be given to payroll to correct the employee’s timecard to reflect the missed meal
break (Tr. 145–47). For reasons not clear from the record, HCR changed the auto-deduct policy in
2010, allowing an hourly employee to indicate directly on the timeclock, when clocking out, whether
or not the employee received a meal break, eliminating use of the punch form (Creely Doc. No. 43
at Tr. 41–42; Creely Doc. No. 42 at Tr. 180–82).
While this testimony supports Plaintiffs’ claim that a similarly situated class of collective
action members exists among HCR’s hourly employees, it is not enough, standing alone, to permit

24

conditional certification. As argued by HCR, and recognized by other courts, “simple allegations of
the existence and implementation of a practice of making automatic deductions for scheduled meal
breaks in and of itself is not ‘sufficient as a common denominator to permit a collective action’ on
behalf of all [employees] subject to the practice.” Brabazon, 2011 WL 1131097, at *3 (citing Fengler
v. Crouse Health Found., Inc., 595 F. Supp. 2d 189, 195 (N.D.N.Y. 2009). See also Wage and Hour
Division, U.S. Dep’t of Labor, Fact Sheet No. 53, The Health Care Industry and Hours Worked
(2009), available at http://www.dol.gov/whd/regs/compliance/whdfs53.pdf).
Second, the testimony supports Plaintiffs’ contentions that HCR improperly shifted the burden
of monitoring “compensable work time” to employees. England, Hutchison, and Mierzwiak all
testified consistently, with slight variations based on their respective knowledge, that the employee
is responsible to keep track of and notify HCR when they have worked off the clock (see Creely Doc.
No. 42 at Tr. 145–48, 151–55; Doc. No. 43 at Tr. 44–46, 49–53; Doc. No. 44 at Tr. 15–17). England
also testified that supervisors, even when they know that an employee has missed a meal break, are
not instructed to initiate an action to cancel the automatic thirty-minute deduction from the
employee’s timecard. He “would hope as a supervisor that that would be something that would be
in their scope” (Creely Doc. No. 42 at Tr. 155). Furthermore, in his role as Director of Compensation
for HCR, England stated HCR does not track or keep data on whether employees are being
compensated properly (Tr. 157–60).
Some courts have held that employers cannot shift this burden of monitoring compensable
time to employees. “The law is clear that it is the employer’s responsibility, not its employees’, to
ensure compensation for work ‘suffered or permitted.’” Camesi, 2009 WL 1361265, at *4 (citing
Chao v. Gotham Registry, Inc., 514 F.3d 280, 288 (2d Cir. 2008) (“[a]n employer who has [actual or

25

constructive] knowledge that an employee is working, and who does not desire the work [to] be done,
has a duty to make every effort to prevent its performance,” and “[t]his duty arises even where . . . the
employee fails to report his . . . hours”)); Lindberg, 2011 WL 204832, at *6 (citing Colozzi v. St.
Joseph’s Hosp. Health Ctr., 595 F. Supp. 2d 200, 206–07 (N.D.N.Y. 2009)).
Third, testimony from England supports Plaintiffs’ claim that HCR failed to train hourly
employees or their managers on what constitutes an “uninterrupted meal break.” HCR deliberately
chose not to provide specific training regarding an “uninterrupted meal break,” preferring instead to
let hourly employees decide for themselves whether they had received an uninterrupted meal break
(Creely Doc. No. 42 at Tr. 130–32) (“the interrupted versus uninterrupted is going to be the
employee’s opinion”). Also, supervisors’ training did not include what it means for employees to
receive an uninterrupted meal break (Tr. 125–26). Instead, HCR was purposely vague on what
constituted a proper meal break under the FLSA, in order to allow both individual employees and
individual HCR facilities to define an uninterrupted meal break (Tr. 126–28) (“Actually, I wanted the
unique facilities and the individuals who were part of the automatic meal break deduction to define
[what constitutes an uninterrupted meal break] themselves.”).
HCR’s approach however is not supported by the plain language of the Department of Labor
Fact Sheet on auto-deduct policies or the federal regulations under the FLSA. Both are explicit in
requiring an uninterrupted meal break period, not a flexible standard to be determined at will by an
employer or an employee. See Dep’t of Labor, Fact Sheet No. 53, at 3 (“[T]he employees must be
completely relieved from duty.”); 29 C.F.R. § 785.19(a) (“The employee must be completely relieved
from duty for the purposes of eating regular meals. . . . The employee is not relieved if he is required
to perform any duties, whether active or inactive, while eating.”). England’s statements that HCR

26

intentionally refused to train employees on what constituted an uninterrupted meal break, and that
such refusal was undertaken with respect to the entire hourly employee population subject to the autodeduct policy, sufficiently supports and advances Plaintiffs’ allegations on this point.
Fourth and finally, the depositions support the claim that HCR did not ensure hourly
employees were receiving an uninterrupted meal break. Wage and Hour Division, U.S. Dep’t of
Labor, Fact Sheet No. 53, at 3 (“[T]he employer must ensure that the employees are receiving the full
meal break.”).
When asked about supervisors’ roles as it relates to making sure employees either receive
uninterrupted meal breaks or fill out a missed punch form, Assistant Vice President Barker testified
that supervisors are not specifically required to verify whether employees receive their break (Creely
Doc. No. 39 at Tr. 29–34). Instead, the supervisor’s broadly defined role might include simply
reminding employees to fill out the punch form as needed, but “that’s where [the supervisor’s]
responsibility would probably end” (Tr. 31). When asked to identify specific expectations in the HCR
job descriptions for supervisors, Barker was unable to identify any responsibilities requiring
supervisors to ensure subordinates received meal breaks (Tr. 32–34).
England’s testimony also supports Plaintiffs’ claims. When asked what instructions were
given to managers or supervisors to monitor employees, England testified: “[T]hey were not provided,
to my knowledge, any additional information other than the fact that each of our employees are
entitled to a 30-minute uninterrupted meal break” (Creely Doc. No. 42 at Tr. 132).
These admissions by HCR are sufficient to support and advance Plaintiffs’ claim that HCR
facilities failed to ensure hourly employees were receiving their uninterrupted meal break in violation

27

of the FLSA, and that all hourly employees may be similarly situated with regard to HCR’s corporate
policy.
The plain language of the Department of Labor Fact Sheet discussing health care employers’
use of auto-punch policies makes it clear the employer has some duty to “ensure” employees are
receiving their meal breaks. “When choosing to automatically deduct 30-minutes per shift, the
employer must ensure that the employees are receiving the full meal break.” Dep’t of Labor, Fact
Sheet No. 53, at 3 (emphasis added). The Department of Labor Fact Sheet also explicitly states that
even when “the employer notifies employees of the [auto-deduct] policy and of their responsibility
to take a meal break[,] . . . the employer is still responsible for ensuring that the employees take the
30-minute meal break without interruption.”
Courts considering the issue of what is legally required under the Department of Labor’s “must
ensure” language have given mixed signals. Some courts have indicated such claims are colorable,
Wolman v. Catholic Health Sys. of Long Island, Inc., 2011 WL 1741905, at *1 (E.D.N.Y. 2011), while
others have cast doubt on whether such a claim will be meritorious. Frye v. Baptist Mem’l Hosp.,
2010 WL 3862591, at *7 (W.D. Tenn. 2010). Furthermore, to what extent and by what methods
employers are expected to ensure employees are receiving their full meal breaks remains unclear, both
under the Department of Labor’s guidance and by courts that have considered the issue. See, e.g.,
Kuznyetsov, 2009 WL 1515175, at *5; Camesi, 2009 WL 1361265, at *4 (“The law is clear that it is
the employer’s responsibility, not its employees’, to ensure compensation for work ‘suffered or
permitted.’”) (citing Chao v. Gotham Registry, Inc., 514 F.3d 280, 288 (2d Cir. 2008)); Brinker v.
S.C., No. S166350, 85 Cal. Rptr. 3d 688 (Cal. 2008) (pending before the California Supreme Court,

28

in part, on the issue of whether an employer must simply make a provision for meal break or ensure
employees receive meal breaks under similar California state laws).
However, the focus of this Court’s inquiry at this point in considering conditional certification
is “not on whether there has been an actual violation of law but rather on whether the proposed
plaintiffs are similarly situated . . . with respect to their allegations that the law has been violated.”
Brabazon, 2011 WL 1131097, at *3 (quoting Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54
(S.D.N.Y. 2005)). Because there is no clear answer on either the general question of what is required
to “ensure” employees receive their breaks or whether HCR’s specific implementation of the autodeduct policy may or may not meet an as-yet-undefined standard, Plaintiffs have provided sufficient
factual support to advance their allegations to the next stage.
Other HCR Documents
The third major group of materials supplied by Plaintiffs are various HCR documents that
describe the processes and procedures by which HCR implemented the auto-deduct policy. Included
in the collection of documents are training materials used by HCR regarding the auto-punch policy
(Creely Doc. Nos. 49, 53–54, 56–57), policy handbooks (Creely Doc. Nos. 50–52), examples of punch
forms (Creely Doc. No. 55 at 16–18), job descriptions (Creely Doc. Nos. 64–66), and cancelled punch
log reports from the timeclock system that show when auto-deducted meal breaks have been cancelled
for assorted HCR employees (Creely Doc. Nos. 60–61).
Several documents support Plaintiffs’ contentions that employees were influenced or pressured
in varying degrees to not turn in punch forms when the employees were unable to take a meal break.
One example document, entitled “RE: ‘No Meal Break Taken’ Policy,” signed by Niccolynn Cross,
an HCR employee not currently a plaintiff in this lawsuit, indicates that if the employee does not get

29

permission in advance before missing a meal break, that employee will be disciplined for requesting
a cancellation of their automatic meal deduction (Creely Doc. No. 55 at 1). Another document
entitled, “Tardies/Missed Punches/FOBS,” signed by Niccolynn Cross and an HR representative,
indicates that if an employee submits three missed punch forms, that employee will be subject to a
minor disciplinary action (id. at 2). A third document, which appears to be a notice sent to the nursing
staff, requires employees to obtain supervisory approval of a missed meal break at the time of the
missed meal break (id. at 6). Other policy documents indicate that “repeated missed lunches are not
acceptable and should not occur without permission” (id. at 12–13). While each of these documents
includes an element of responsibility on the part of the employee with respect to not missing meal
breaks, these documents also support Plaintiffs’ allegations that employees were discouraged from
submitting missed punch forms when they were unable to take an uninterrupted meal break and that
employees would turn them in only if they were able to take no meal break at all.
Other documents submitted by Plaintiffs support a finding that HCR neither properly trained
employees about their right to an uninterrupted break nor were supervisors ensuring employees
received a break. Director of Safety and HR Operations Support Hutchison discussed an HCR
document (Creely Doc. No. 43 at Tr. 53–54) that misrepresented to employees their right to have an
uninterrupted meal break under HCR’s auto-deduct policy. Under the heading “Meal Breaks,”
employees were instructed if they work more than five hours per day, the employee is “allowed an
unpaid thirty (30) minute meal break” (Creely Doc. No. 55 at 4). In fact, employees were not simply
“allowed” to take such a break but were expected and required to take such a break. By choosing to
implement the auto-deduct policy, HCR incurred the duty to ensure employees received uninterrupted
meal breaks despite the standard provisions of the FLSA that do not require an employer to give

30

employees such meal breaks. See Dep’t of Labor, Fact Sheet No. 53, at 3 (“[T]he employer is still
responsible for ensuring that the employees take the 30-minute meal break without interruption”); see
also Camesi, 2009 WL 1361265, at *4.
While HCR maintains that Plaintiffs have not shown specific knowledge of other employees’
experience (Creely Doc. No. 78 at 16–18), Plaintiffs have shown what may be significant
shortcomings in the way HCR chose to implement its company-wide auto-deduct policy. Plaintiffs
are not also required to present some additional, unspecified number of affected employees in order
to proceed to conditional certification.
Nor is this Court persuaded by HCR’s argument that employees have successfully cancelled
meal breaks over 840,000 times over the four-year period in question (id. at 22), thereby casting doubt
on Plaintiffs’ claims. While HCR’s quoted number appears impressive standing alone, viewing the
840,000 cancellations in context of all shifts worked accounts for less than 2% of the total shifts
worked by the putative collective action members (Creely Doc. No. 79-1 at 6). Without weighing the
merits of the claims and evidence at this point in the litigation, a showing that fewer than 2% of
hourly employees over the course of four years successfully cancelled a missed meal break is not so
overwhelming as to defeat Plaintiffs’ claim that a similarly situated class exists.
II.

CONTEH V. ATRIUM CENTERS, ET AL.
Introduction
Plaintiff Sandra Conteh worked as a Licensed Practical Nurse from September 2004 until

November 2009 at the Darlington Nursing & Rehabilitation Center in Toledo, Ohio (Conteh Doc. No.
29 at 8). The Darlington facility was operated by Defendants Atrium Centers, LLC (“Atrium”), and
its operating groups Essex Group, and Orion Operating Services, LLC (“Orion”), which together

31

operate short-term medical care and rehabilitation and long-term skilled nursing care facilities in
Ohio, Kentucky, Wisconsin, and Michigan (Conteh Doc. No. 23 at 3; Doc. No. 34 at 2). Atrium and
its operating companies operate roughly 45 facilities, each of which employs between 20 and 200
individuals (Conteh Doc. No. 29 at 2). Management and policy development for all facilities is
centralized at Atrium’s corporate headquarters (id. at 3). Atrium also utilizes two regional Human
Resource Directors to administer HR policies and each individual facility has an on-site administrator
(id.).
Atrium acquired 25 of its 45 facilities in 2007. Those 25 facilities implemented an auto-deduct
meal break policy that automatically deducted thirty minutes from employees’ timecards when they
worked a shift of more than five hours (id. at 4–5). Approximately 1,600 employees were subject to
the auto-deduct policy (id. at 5).
Conteh originally filed this suit in February 2010, on behalf of herself and other similarly
situated hourly employees of Atrium, alleging Atrium violated the FLSA in the 25 Atrium facilities
by not compensating hourly employees for all time worked due to the automatic deduction of meal
break time (Conteh Doc. No. 1). Conteh later filed two Amended Complaints (Conteh Doc. Nos. 2,
22). The parties were granted approximately six months to conduct limited discovery on whether a
group of similarly situated employees existed before proceeding with conditional certification of a
collective action (Conteh Doc. Nos. 16, 24).
Conteh moved for conditional certification of a FLSA collective action in November 2010
(Conteh Doc. Nos. 28, 29). Atrium opposed (Conteh Doc. No. 34) and Conteh replied (Conteh Doc.
No. 37). The Court heard oral argument in February 2011 (Conteh Doc. No. 42).

32

Conteh’s Allegations
As discussed above with respect to the general standard to be applied in this case, the primary
basis for Conteh’s Complaint is Atrium’s use of an auto-deduct policy to automatically deduct a
thirty-minute meal break from hourly employees’ timecards when an employee worked a shift of more
than a certain length (the “Meal Break Deduction Policy”) (Conteh Doc. No. 22 at 4). Atrium
implemented this policy through the use of two computerized timekeeping systems, Kronos and Etime, in 25 of its facilities and all Atrium non-exempt hourly employees are subject to the Meal Break
Deduction Policy (id. at 5). Conteh alleges the auto-deduct policy improperly and illegally shifts the
burden to employees to ensure non-qualifying (i.e., meal breaks of less than thirty minutes or
interrupted meal breaks) are not deducted from their pay (id.). Conteh also alleges Atrium does not
ensure hourly employees are completely relieved of their duties, thereby preventing employees from
taking uninterrupted meal breaks as required by Department of Labor guidelines for employers that
choose to implement an auto-deduct policy (id.).
Conteh makes three primary allegations regarding Atrium’s corporate policies with respect
to the proposed collective action (Conteh Doc. No. 29 at 2):
•

Atrium improperly shifts the burden of monitoring compensable work time to
hourly employees by requiring employees to attempt to cancel missed or
interrupted meal breaks;

•

Atrium fails to provide any instruction to employees or their supervisors as to
what constitutes an uninterrupted meal break; and,

•

Atrium does not provide any training or require supervisors to monitor if or
when hourly employees receive an uninterrupted meal break despite Atrium’s
decision to implement the automatic thirty-minute deduction.

33

As discussed with respect to the Creely plaintiffs’ claims above, Conteh’s claims are focused
on Atriums’s method of implementing the policy, and are not the policy-to-violate-the-policy claims
that have appeared in other FLSA cases. See, e.g., Saleen, 2009 WL 1664451, at *5. Accordingly,
as above, this Court’s review will focus on whether Conteh’s top-down discovery approach has
produced sufficient facts drawn from discovery at the Atrium corporate level, and not from other
potentially affected employees, to advance her conditional collective action claims.
Conteh’s Factual Support
Conteh provides her own declaration and deposition testimony (Conteh Doc. Nos. 30-1, 30-5),
along with deposition testimony from three Atrium Rule 30(b)(6) representatives (Conteh Doc. Nos.
30-2, 30-3, 30-4), and various Atrium internal documents (Conteh Doc. Nos. 30-6–30-18).
Conteh Testimony
Similar to the Creely plaintiffs, Conteh’s own declaration and deposition testimony does little
to advance her claims as the relevant content simply restates many of the same claims present in her
Complaint. The simple claim that Conteh and other hourly employees were subject to an auto-deduct
policy is not sufficient standing alone for conditional certification. Conteh’s declaration does add
however that she personally observed other hourly employees who worked through their meal breaks
or were interrupted during their meal breaks. While of questionable admissibility, these personal
observations in support of the Complaint’s allegations can be considered as supportive, but not
sufficient, to conditionally certifying the collective action. See Carter, 2011 WL 1256625, at *16–17.
Deposition Testimony
Three corporate representatives testified on behalf of Atrium:
•

Keith Yoder, Chief Financial Officer (“CFO”);

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•

Dennis Lockhart, Controller; and,

•

Susan Kreuser, Vice President of Human Resources.

The testimony of each individual advances Conteh’s allegations.
Keith Yoder, as CFO, testifying with regard to Atrium’s corporate auto-deduct policy as it
applied to the 25 facilities at issue, confirmed the implementation of the policy at the facilities
(Conteh Doc. No. 30-2 at Tr. 61–64). Yoder was able to generally describe the policy and where it
was documented, yet was unable to address even the basics of the procedures about how an employee
could cancel the auto-deduction (Tr. 91). Yoder did confirm that, in implementing the auto-deduct
policy, no records were kept on whether employees were actually taking thirty-minute uninterrupted
meal breaks (Tr. 97).
While there was an unrecorded in-service training session for supervisors and employees, the
Atrium employee handbook and policy manual were not updated to reflect the use of the auto-deduct
policy (Tr. 99–100). Yoder also indicated that despite the differences in payroll policies and
procedures between those Atrium facilities that used the auto-deduct policy versus those that did not,
no changes were made to the written policy documentation (Tr. 73–74).
Similarly, Dennis Lockhart, in his role as Atrium’s controller and head of payroll (Conteh
Doc. No. 30-2 at Tr. 44), provided additional support for Conteh’s claims. Atrium’s supervisors were
not instructed or trained to track whether employees worked through their meal breaks, nor were
employees provided any formal training on the auto-deduct policy (Conteh Doc. No. 30-3 at Tr.
28–35, 91). Atrium failed to provide guidance to employees as to what constituted an “uninterrupted
meal break,” as defined under the FLSA or to inform employees that they would be subject to an
automatic thirty-minute deduction (Tr. 28–29) (“Q. [D]o you know whether any of these employee

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manuals or handbooks ever instructed those employees on what it meant to actually get a 30-minute
uninterrupted meal break? A. Other than stating that they are owed a 30-minute uninterrupted meal
break, I’m not aware of any other.”).

Lockhart was also unaware whether there was any

documentation instructing employees to fill out a Payroll Adjustment Form for a missed meal break,
suggesting only that it might be in the HR policy manual or employee handbook (Tr. 29). There is,
in fact, no such instruction in either document.
In addition, supervisors themselves might be working with the employee when the employee
was working through his or her meal break (Tr. 93–94). This adds credence to Conteh’s claims that
not only did supervisors fail to ensure meal breaks were taken but in fact supervisors may have been
aware meal breaks were not being taken despite the auto-deduct policy.
The testimony of Susan Kreuser provides yet more support to Conteh’s allegations. When
asked what training or documentation employees received about the auto-deduct policy, Kreuser
indicated there was a one-page informational sheet on meal breaks included in the employee’s
orientation packet (Conteh Doc. No. 30-4 at Tr. 17–20). As it turns out, this one-page sheet makes
no mention of the auto-deduct policy, provides no guidance that the employee is entitled to an
uninterrupted meal break or what constitutes an uninterrupted meal break, nor does the sheet provide
instructions on how to go about cancelling the automatic deduction -- in essence, supporting all three
of Conteh’s primary allegations (Conteh Doc. No. 30-16). Kreuser also confirmed that there were no
“across-the-board presentations or seminars” to educate employees on the auto-deduct policy when
it was implemented (Conteh Doc. No. 30-4 at Tr. 33).

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Conteh Submitted Documents
While much of the documentation submitted by Conteh does little to support her allegations
(payroll adjustment forms (Conteh Doc. No. 30-15), timeclock logs (Conteh Doc. No. 30-17), and
various business formation documents for Atrium and its operating companies (Conteh Doc. Nos. 309, 30-10)), a few documents do support her claims.
First, the Atrium employee handbook distributed to all hourly employees was never updated
to reflect the implementation of the auto-deduct policy and thus fails to alert employees as to the
process that should be used to cancel an auto-deducted meal break (Conteh Doc. No. 30-18 at 15)
(describing Rest and Meal Periods). Additionally, the handbook fails to explain what constitutes an
uninterrupted meal break. These omissions lend some support to Conteh’s claims that employees
were not properly trained or fully informed about Atrium’s auto-deduct policy.
Second, Atrium’s human resources policy manual also fails to fully explain the auto-deduct
policy, the requirements of uninterrupted meal breaks, and the procedures by which an automatically
deducted meal break is cancelled (Conteh Doc. No. 30-14 at 153–55). This policy manual, which was
not generally available to employees, was the primary source of supervisor training materials, outside
of undocumented individual communications or oral discussions (Conteh Doc. No. 30-4 at Tr. 32–33).
Unlike the employee handbook, the policy manual was updated to mention the existence of
the auto-deduct policy in some facilities, but without identifying which facilities employ the policy
(Conteh Doc. No. 30-14 at 153–55). Further, nowhere does the policy manual instruct Atrium’s HR
personnel or managers on the requirement to ensure hourly employees actually receive a break, nor
does the manual provide guidance on the requirement that a meal break must be uninterrupted in order
to qualify as a uncompensated meal break. Even though the employee handbook and the policy

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manual were the primary means to inform and train Atrium personnel (Conteh Doc. No. 30-2 at Tr.
85–87; Doc. No. 30-3 at Tr. 24–25), these documents reflect that managers and supervisors may not
have been properly trained.
Atrium Submitted Documents
Lastly, this Court is not swayed by Atrium’s submission of thirty-five “happy camper”
affidavits from employees at seven of Atrium’s auto-deduct facilities (Conteh Doc. No. 35-5). The
affidavits, all using substantially the same language, each state that the employee never had an issue
with missing a meal or, in the event the employee did miss a meal break, the employee was able to
fill out a payroll adjustment form to indicate they missed their break and were properly paid.
These affidavits are of little use at this juncture. Just as courts have not traditionally required
a plaintiff seeking conditional certification to come forward with some threshold quantity of opt-in
plaintiffs, see Carter, 2011 WL 1256625, at *16–17, it is no more helpful for the employer to round
up a small sample of favorable statements from employees. Furthermore, Atrium’s argument that
such affidavits show Conteh’s proposed class is unmanageable and overbroad also fails. While it is
likely true that not all hourly employees will opt-in to the collective action, the Court’s function at
this stage of conditional certification is not to perform a detailed review of individualized facts from
employees hand-picked by Atrium. Those questions of the breadth and manageability of the class are
left until the second-stage analysis following the receipt of forms from all opt-in plaintiffs. See
O’Brien, 575 F.3d at 584–85.
CONCLUSION
At this stage, the Court is determining whether Defendants’ employees were allegedly subject
to a common practice which may have resulted in FLSA overtime violations. The proper inquiry is

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simply “whether plaintiffs are similarly situated with respect to their allegations that the law has been
violated.” Chowdhury, 2007 U.S. Dist. LEXIS 73853, at *15. Plaintiffs have submitted sufficient
evidence to support and advance their allegations.

Therefore, the Motions for Conditional

Certification are granted (Creely Doc. No. 35; Conteh Doc. No. 29).
Counsel are directed to submit within ten (10) days a joint letter to the Court describing the
desired language of the opt-in notice to be delivered to the conditional collective action members,
highlighting any disagreements on language requiring attention by the Court.
IT IS SO ORDERED.
s/ Jack Zouhary
JACK ZOUHARY
U. S. DISTRICT JUDGE
June 9, 2011

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