HOLLEY v. ERICKSON LIVING et al

Filing 21

MEMORANDUM AND/OR OPINION SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 5/18/12. 5/21/12 ENTERED AND COPIES E-MAILED.(ti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LINDA HOLLEY,
Plaintiff,
v.
ERICKSON LIVING, et al.,
Defendants.

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CIVIL ACTION
NO. 11-2444

M E M O R A N D U M
EDUARDO C. ROBRENO, J.
I.

May 18, 2012

INTRODUCTION
Plaintiff Linda Holley (“Plaintiff”) brings this Fair

Labor Standards Act (“FLSA”) action against Defendants Erickson
Living and Erickson Living at Ann’s Choice (collectively,
“Defendants”).

Plaintiff, on behalf of herself and those

similarly situated, alleges that Defendants violated the FLSA by
requiring employees to perform work without proper compensation
before their shifts began and during their lunch breaks.

To

that end, Plaintiff proposes the certification of two subclasses: (1) a pre-shift work subgroup including all non-exempt
persons employed by Defendants between March 30, 2008, and the
present; and (2) a lunch-break work subgroup including all nonexempt persons employed by Defendants between March 30, 2008,
and the present.

Currently before the Court is Plaintiff’s Motion
Authorizing Notice to Similarly Situated Persons.

For the

reasons that follow, the Court will deny Plaintiff’s Motion
without prejudice.

II.

BACKGROUND
Defendant-Erikson Living develops and manages

continuing care retirement communities.

Relevant here,

Defendant-Erikson Living manages the Ann’s Choice and Maris
Grove facilities.

Ann’s Choice is a senior living community

located in Bucks County, Pennsylvania.

Maris is a retirement

community located in Glenn Mills, Pennsylvania.

Combined, Ann’s

Choice and Maris have approximately 167 non-exempt employment
positions.

Plaintiff worked at Ann’s Choice as a nurse from

November 2007 to September 2010.

Cynthia Wilcox, a putative

opt-in Plaintiff, also worked at Ann’s Choice as a nurse from
September 2007 to April 2009.1

It is undisputed that Plaintiff

1

Plaintiff, in her Motion, contends that Cynthia Wilcox
is an opt-in Plaintiff. Wilcox consented to opt in to this
action as required by 29 U.S.C. § 216(b) on September 20, 2011.
See ECF No. 13. Nonetheless, she is still not a plaintiff in
this case in the sense that any judgment cannot bind Wilcox
until the Court determines that Wilcox, and other potential optin plaintiffs, are similarly situated. See 29 U.S.C. § 216(b)
(2006); see also McElmurry v. U.S. Bank Nat’l Ass’n, 495 F.3d
1136, 1139 (9th Cir. 2007) (“[U]nlike a class action, only those
plaintiffs who expressly join the collective action are bound by
its results.”). Put another way, while Wilcox may have opted in
2

and Wilcox were non-exempt employees and that the alleged FLSA
violations only relate to non-exempt employees.
Plaintiff’s Complaint avers two of Defendants’ alleged
timekeeping policies violate the FLSA.

First, Defendants failed

to compensate Plaintiff for pre-shift work.

Defendants’

standard work period for non-exempt employees was a forty-hour
work week, consisting of eight hours a day of paid time.

All

non-exempt employees had to clock in and clock out at the
beginning and end for their shifts.

Defendants used the

“Kronos” timekeeping system to record employees’ work hours.
Plaintiff contends that the Kronos system at Ann’s Choice only
allowed employees to clock in during a seven-minute window
before an employee’s scheduled shift time.

If an employee was

late to work, the Kronos system prevented the employee from
clocking in.
This resulted in two problems.

One, employees arrived

at work well before their scheduled shift.

Two, if the employee

was late, they performed work while not clocked in that resulted
in under payment of wages.

In particular, Plaintiff contends

that when she arrived at work early Defendants required her to
perform work duties before the start of her shift including,
“receiving pass down instructions, collecting or checking
without court-ordered notice, she is still not a plaintiff in
this case until the Court determines she is similarly situated.
3

equipment, answering phone calls, providing patient care,
interacting with visitors[,] and other things.”

Pl.’s Br. in

Supp. of Mot. for Authorizing Notice to Similarly Situated
Persons 4, ECF No. 16 [hereinafter Pl.’s Br.].

Plaintiff

contends that she performed about ten to twenty minutes of this
pre-shift work twice a week.
Ex. A.

See Holley Decl. ¶ 8, Pl.’s Br.

Opt-in Plaintiff Wilcox contends that she performed

about ten to twenty minutes of this pre-shift work three times a
week.

See Wilcox Decl. ¶ 8, Pl.’s Br. Ex. B.

Plaintiff further

contends that Defendants knew of this pre-shift work, but did
nothing to track the instances of pre-shift work or compensate
Plaintiff for such work.

Finally, Plaintiff and Wilcox contend,

“Through their personal observations of, and discussions with,
their co-workers during the Class Period, Plaintiffs believe
that other Class members were subjected to the same pre-shift
work policies and practices and affected the same way by them.”
Pl.’s Br. 5.
Second, Defendants failed to compensate Plaintiff for
meal-break work.

Plaintiff contends that all Defendants’

employees were governed by a common meal-break policy.

This

policy provided that all “[e]mployees scheduled to work a
standard eight and one-half hour shift are allowed . . . one
thirty minute unpaid meal break.”
Pl.’s Br. Ex. C.

Hours of Work and Paydays,

Plaintiff contends that Defendants configured
4

the Kronos system to automatically deduct thirty minutes from an
employee’s daily total work hours to result in a total of eight
paid hours, regardless of whether an employee worked during his
meal break.

Plaintiff contends that she worked during her meal

break at least five times per week during the class period.
Wilcox contends that she worked during her meal break about four
times per week during the class period.

Defendants allegedly

knew about this unpaid work and did nothing to track this time.2
In an effort to recoup compensation for this pre-shift
and meal-break work, Plaintiff filed this suit on April 8, 2011.
The Court ordered completion of discovery regarding conditional
certification by October 15, 2011.
ECF No. 11.

See First Scheduling Order,

After close of this discovery period, Plaintiff

moved for conditional certification of her collective action.
ECF No. 16.

Therein, Plaintiff moved the Court to order notice

to all non-exempt, full-time employees of Ann’s Choice and Maris
Grove from March 30, 2008, to the present, along with the last
four digits of each employee’s Social Security number.

2

Plaintiff admits that Defendants had a policy for
reimbursing employees for this meal-break work. See Timecard
Change/Missed Punch/Missed Meal Break, Defs.’ Resp. in Opp. to
Pl.’s Mot. Ex. I, ECF No. 18 [hereinafter Defs.’ Br.].
Plaintiff contends, however, that Defendants “routinely
discouraged, ignored[,] or failed to approve efforts to recover
unpaid meal break wages.” Pl.’s Br. 6.
5

Defendants opposed this motion.

ECF No. 18.

Plaintiff’s Motion

is now fully briefed and ripe for disposition.

III. APPLICABLE LAW
The FLSA, in pertinent part, requires employers to pay
overtime wages for those hours worked more than forty hours a
week at a rate of “not less than one and one-half times the
regular rate at which he is employed.”

29 U.S.C. § 207 (2006).

A plaintiff seeking redress under the FLSA may maintain an
action on “behalf of himself or themselves and other employees
similarly situated.”

29 U.S.C. § 216(b).

This collective

action device provides “plaintiffs the advantage of lower
individual costs to vindicate rights by the pooling of
resources.”

Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165,

170 (1989).

Moreover, collective actions benefit “[t]he

judicial system . . . by efficient resolution in one proceeding
of common issues of law and fact arising from the same alleged
discriminatory activity.”

Id.

Unlike a typical class action

under Federal Rule of Civil Procedure 23 where plaintiffs must
opt-out of the lawsuit, a collective action under the FLSA
requires similarly situated plaintiffs to opt-in to the lawsuit.
Id.
To manage this opt-in requirement, “district courts
have discretion, in appropriate cases, to implement [] § 216(b)
6

. . . by facilitating notice to potential plaintiffs.”
169.

Id. at

Hoffmann reasoned that district courts should control the

litigation and curb potentially frivolous law suits by
exercising their discretion when deciding if notice is
appropriate.

See id. at 172 (“Court authorization of notice

serves the legitimate goal of avoiding a multiplicity of
duplicative suits and setting cutoff dates to expedite
disposition of the action.”).

This notice, when appropriate,

provides potential plaintiffs the ability to fulfill the
statutorily required opt-in procedure.
Yet, this notice “is neither necessary nor sufficient
for the existence of a representative action under FLSA.”
v. Hertz Corp., 624 F.3d 537, 555 n.10 (2d Cir. 2010).

Myers

The key

inquiry is whether the proposed opt-in plaintiffs are similarly
situated so the case may proceed as a collective action.

And,

when determining if a plaintiff may proceed with a collective
action, the Court performs a two-step analysis.

See Symczyk v.

Genesis HealthCare Corp., 656 F.3d 189, 192 (3d Cir. 2011);
Villanueva-Bazaldua v. TruGreen Ltd. Partners, 479 F. Supp. 2d
411, 414 (D. Del. 2007); see also Bramble v. Wal-Mart Stores,
Inc., No. 09-4932, 2011 WL 1389510, at *3 (E.D. Pa. Apr. 12,
2011).

The first step is early in the litigation and requires

the Court to determine whether the plaintiff has shown there are
other plaintiffs similarly situated such that notice of the
7

collective action is proper.

Symczyk, 656 F.3d at 192; see also

Pereira v. Foot Locker, Inc., 261 F.R.D. 60, 62 (E.D. Pa. 2009).
That is, there must be some “factual nexus between [the
plaintiff’s situation] and the situation of other current and
former [employees] sufficient to determine that they are
similarly situated.”

Pereira, 261 F.R.D. at 63 (internal

quotation marks omitted).

The second step is after the close of

discovery and is a more fact-specific inquiry into “whether each
plaintiff who has opted in to the collective action is in fact
similarly situated to the named plaintiff.”
at 193.

Symczyk, 656 F.3d

“This second stage is less lenient, and the plaintiff

bears a heavier burden.”

Id. (internal quotation marks

omitted).
In this case, the Court is at the step-one inquiry.
Recently, the Third Circuit provided guidance to district courts
when making this step-one inquiry.

See id. at 193.

The court

in Symczyk resolved a split in district courts3 and held that the

3

Before Symczyk, district courts within the Third
Circuit used two different standards at the step-one inquiry.
Some cases, generally at a stage where discovery had not begun,
only required the plaintiff to make a “substantial allegation”
and “merely allege that the putative class members were injured
as a result of a single policy of a defendant employer.”
Pereira, 261 F.R.D. at 62 (internal quotation marks omitted).
In contrast, under the still-lenient “modest showing” test,
“mere allegations” are insufficient; the plaintiff must submit
some evidence that there are similarly situated plaintiffs. See
Bramble, 2011 WL 1389510, at *4 (quoting Williams v. Owens &
8

“‘modest factual showing’ standard — which works in harmony with
the opt-in requirement to cabin the potentially massive size of
collective actions — best comports with congressional intent and
with the Supreme Court’s directive that a court ‘ascertain [ ]
the contours of [a collective] action at the outset.’”

Id.

(alterations in original) (quoting Hoffmann, 493 U.S. at 172).
With respect to whether there are “similarly situated”
employees, this “modest factual showing” standard requires
Plaintiff to “produce some evidence, beyond pure speculation, of
a factual nexus between the manner in which the employer’s
alleged policy affected her and the manner in which it affected
other employees.”

Id. at 193 (internal quotation marks

omitted); see also Bramble, 2011 WL 1389510, at *4 (providing
that “[t]he right to proceed collectively may be foreclosed
where an action relates to specific circumstances personal to
the plaintiff rather than any generally applicable policy or
practice” (internal quotation marks omitted)).

IV.

DISCUSSION
Recognizing that the “modest factual showing” standard

governs Plaintiff’s Motion, the Court turns to whether Plaintiff
made the required showing.

Plaintiff seeks to have the Court

Minor, Inc., No. 09-00742, 2009 WL 5812596, at *3 (E.D. Pa. Oct.
9, 2009)).
9

order notice to the following proposed similarly situated
plaintiffs: “[E]ach person who worked as a non-exempt, full-time
employee at Ann’s Choice or Maris Grove.”
Br. Ex. 1.

Proposed Order, Pl.’s

Accordingly, the Court must determine whether

Plaintiff has made a modest factual showing that Defendants’
policy with respect to compensation for either pre-shift or
meal-break work affected other non-exempt employees in the same
manner as it affected Plaintiff.4

A.

Pre-shift Work
Plaintiff contends that Ann’s Choice, where Plaintiff

worked, required all non-exempt employees to clock in during a
seven minute period before their shift began.
Holley Delc. ¶ 3; Wilcox Delc. ¶ 3.
4

See Pl.’s Br. 3;

For example, if a shift

At the step-one inquiry, the Court does not weigh the
evidence, resolve factual disputes, or reach the merits of
Plaintiff’s claims. See Pereira, 261 F.R.D. at 67 (“We cannot
discount Plaintiff’s evidence of such complaints by weighing
them substantively with Defendant’s explanations and exploring
the merits of the claim.”). Such inquiries are left to step
two. The Court does not, however, review Plaintiff’s evidence
in a vacuum. It reviews Plaintiff’s evidence in light of the
evidence submitted by Defendants. See Bramble, 2011 WL 1389510,
at *5 n.6 (“‘[R]ather than rely merely on the evidence presented
by the Plaintiffs, it is appropriate to examine all of the
relevant evidence.’” (quoting Holt v. Rite Aid Corp., 333 F.
Supp. 2d 1265, 1274 (M.D. Ala. 2004))); see also Pereira, 261
F.R.D. at 67 (“[W]hile such evidence is reviewed in assessing
Plaintiff’s burden to establish that he is similarly situated,
such evidence is more appropriately substantively weighed
pursuant to a decertification motion or a motion for summary
judgment.” (internal quotation marks omitted)).
10

began at 7:30 A.M., then all employees had to clock in between
7:23 A.M. and 7:30 A.M.

If an employee did not clock in during

this time, the Kronos system would not allow the employee to
clock in.

This system resulted in Plaintiff arriving to work

before her scheduled shift time and Defendants giving her work
to perform during this pre-shift period.

Plaintiff also

contends that she had to work during her scheduled shift time
without Defendants paying her for that work because Kronos did
not recognize that she was on-the-clock.

Plaintiff argues that

the common policy of requiring Plaintiff to arrive at work and
clock in during this seven minute window, combined with
Plaintiff and Wilcox’s declaration providing the effects of this
policy, is sufficient to meet her burden of a modest factual
showing of the existence of similarly situated plaintiffs.
Defendants, on the other hand, contend that Ann’s
Choice did not have this seven minute clock-in policy at all.
See Defs.’ Br. 8.

Defendants contend that Maris Grove has a

seven-minute grace period such that an employee may arrive to
work seven minutes late, but be considered on time.
Decl. ¶ 19, Defs.’ Br. Ex. A.

Arredondo

Similarly, an employee may leave

work seven minutes early, but be considered to have finished his
shift.

Moreover, Defendants provide a form for employees to

fill out if the Kronos system has not clocked an employee in

11

when she arrived.

See Timecard Change/Missed Punch/Missed Meal

Break, Defs.’ Br. Ex. I.
In this case, Plaintiff fails to make the required
modest factual showing vis-à-vis her proposed sub-class of preshift work claims.

To be sure, Plaintiff has modestly shown

facts – given the alleged common policy and declarations of
Plaintiff and Wilcox – that other non-exempt employees at Ann’s
Choice are similarly situated for the pre-shift work claims.
The Court cannot make the same conclusion regarding pre-shift
work at Maris.

Plaintiff provides no documentary or other

evidence that the policy allegedly in practice at Ann’s Choice
that prevented payment for pre-shift work was in effect at
Maris.

Indeed, Plaintiff provides no evidence regarding the

clock-in procedure at Maris or otherwise discusses Maris’s
seven-minute grace period.5

The Court will not ignore

Defendants’ evidence given the absence of any evidence provided
by Plaintiff with respect to Maris.
Under these circumstances, the Court will deny
Plaintiff’s Motion without prejudice because her requested

5

Both Plaintiff and Wilcox were employed at Ann’s
Choice and both declarations are virtually identical. Neither
declarant was employee at Maris, or provides any detail of a
blanket policy at both Ann’s Choice and Maris of this sevenminute window. Therefore, the Court cannot conclude that there
is a modest factual showing that other employees performed preshift work at Defendants’ Maris facility.
12

notice is too broad to encompass her specific claim of failure
to compensate for pre-shift work at both Ann’s Choice and Maris.
See Williams v. Securitas Sec. Servs. U.S.A., Inc., No. 10-7181,
2011 WL 3629023, at *4 (E.D. Pa. Aug. 17, 2011) (holding that
declarations only indicated that pre-shift work occurred at
certain locations and that this was fatal to plaintiff’s
conditional certification for all locations); see also Camesi v.
Univ. of Pittsburgh Med. Ctr., No. 09-85J, 2009 WL 1361265, at
*3 (W.D. Pa. May 14, 2009) (allowing conditional certification
for health workers in different facilities where defendant had
written blanket policy of deducting time for meal breaks).
Plaintiff may reconstruct the notice, submit competent evidence
to the Court, or modify the proposed collective group to conform
to the evidence.

Plaintiff may file a revised notice, if

appropriate.

B.

Meal-break Work
Plaintiff’s Complaint also alleges that Defendants

failed to properly compensate Plaintiff for meal-break work.
Specifically, Plaintiff argues that the Kronos system deducts
thirty minutes automatically from Plaintiff’s hours worked,
regardless of whether or not she worked during her meal break.
Plaintiff contends that she never received her meal break for
her three years of employment with Defendants, and Defendants
13

did not compensate Plaintiff for this time.

Similarly, Wilcox

contends that she did not receive her meal break about four
times per week and was similarly uncompensated for some of this
time.6
It is undisputed that the Kronos system does, at both
Ann’s Choice and Maris, deduct thirty minutes for lunch break
for certain non-exempt employees, regardless of whether or not
that employee works during her meal break.
¶ 7, Defs.’ Br. Ex. A.

See Arredondo Decl.

Indeed, Defendants’ employee handbook

indicates that all employees have thirty minutes of unpaid meal
break.

See Hours of Work and Paydays, Pl.’s Br. Ex. C.

The

only employees that must clock in and out for the meal break are
those employees under eighteen years old.

See id. (“Employees

under 18 must punch in and out for their thirty-minute break to
validate that they have actually taken their break.”).

This

common policy is sufficient at this step-one inquiry to conclude
that the automatic deduction policy affected all non-exempt
employees, except those under eighteen years old, at both Ann’s
Choice and Maris.

6

Defendants provide evidence that Wilcox filled out the
appropriate meal-break reimbursement form on several occasions.
See Defs.’ Br. Ex. O. But, Defendants do not provide nearly all
the forms to cover Wilcox’s alleged four days a week of mealbreak work for her approximately one-and-one-half years of
employment.
14

Defendants argue that the following non-exempt
employees do not have time automatically deducted from their
pay: security, transportation, and communications department
employees.

Beauchamp Decl. ¶ 9, Defs.’ Br. Ex. B.

There is no

documentary evidence submitted to the Court to confirm this
exclusion.

Therefore, as this is contradictory to Plaintiff and

Wilcox’s declarations, the Court will not make a factual
determination over whether these employees should not be
included within the notice of collective action at this
preliminary stage.
Defendants also argue that Plaintiff’s notice vis-àvis meal-break work sweeps too broadly.

Specifically,

Defendants argue that Plaintiff’s notice should be limited to
only nurses employed at Ann’s Choice because there are numerous
non-exempt employees at Ann’s Choice and Maris that have
different job functions that may not result in unpaid meal-break
work.

See Defs.’ Br. 8 (providing job descriptions of other

employees and suggesting that because job descriptions differ
that all employees are not similarly situated).

Therefore,

Defendants argue, Plaintiff’s proposed notice sweeps too broadly
to encompass employees that may not have worked during meal
break and also employees that did not have time automatically
deducted.

15

Defendants provide the Court with no documentary
evidence that all employees, except for those under eighteen
years old, do not have their meal-break time automatically
deducted.

All they provide is a declaration that Plaintiff and

Wilcox’s declarations contradict.
contradictory evidence.

The Court will not weigh this

Plaintiff’s proffered declarations,

along with the documentary evidence that Defendants had a
blanket policy of a thirty minute unpaid meal break that was
automatically deducted from each employee’s pay, are sufficient
for conditional certification of Plaintiff’s collective action
for employees over eighteen years old at both Ann’s Choice and
Maris for Plaintiff’s meal-break work claim.7

See O’Brien v. Ed

Donnelly Enters., Inc., 575 F.3d 567, 585 (6th Cir. 2009)
(“[P]roof of a violation as to one particular plaintiff does not
prove that the defendant violated any other plaintiff’s rights
under the FLSA.

Nevertheless, the plaintiffs are ‘similarly

situated’ according to § 216(b).”).

7

Defendants argue that the factual dissimilarities
between potential class plaintiffs should preclude the Court
from conditionally certifying the collective group. While
Defendants may ultimately prevail on the merits, conditional
certification under the “modest factual showing” standard is
permissive. Should this case proceed to step two of the
certification inquiry, the Court will perform a more searching
analysis into whether certification of the collective action is
appropriate. See Symczyk, 656 F.3d at 192.
16

In sum, under these circumstances, Plaintiff has shown
a sufficient factual nexus for the Court to conclude that notice
to similarly situated persons should be granted to employees
over eighteen years old at both facilities for Plaintiff’s mealbreak work claim.8

See Camesi, 2009 WL 1361265, at *3 (allowing

conditional certification for health workers in different
facilities where defendant had written blanket policy of
deducting time for meal breaks); see also Lindberg v. UHS of
Lackside, L.L.C., 761 F. Supp. 2d 752, 759-60 (W.D. Tenn. 2011)
(collecting cases granting conditional certification for auto
deduction policies); Colozzi v. St. Joseph’s Hosp. Health Ctr.,
595 F. Supp. 2d 200, 206-07 (N.D.N.Y. 2009) (recognizing burden
is upon employer to ensure employees are compensated for mealbreak work, and that employer must “police and oversee hourly
workers and their supervisors to ensure that when working
through or during unpaid meal breaks they are compensated”).

8

Defendants argue, and Plaintiff concedes, that
Defendants had a remedy to this meal-break work. An employee
could fill out a reimbursement form for any time worked during
the thirty-minute meal break. See Timecard Change/Missed
Punch/Missed Meal Break, Defs.’ Br. Ex. I. Plaintiff argues
that Defendants required an employee to submit this form within
twenty-four hours of the missed work break and that Defendants
rarely granted the reimbursement. The Court need not resolve
this dispute at this preliminary stage, however, as it is best
left to the more searching step-two inquiry.
17

C.

Notice to Similarly Situated Plaintiffs
While the Court concludes that Plaintiff showed there

are sufficiently similar plaintiffs with respect to her claim
for meal-break work at both Ann’s Choice and Maris for employees
over eighteen years old, the Court will deny Plaintiff’s Motion
without prejudice.

First, as explained above, Plaintiff’s

Complaint alleges there are two sub-classes of plaintiffs, preshift work and meal-break work at both Ann’s Choice and Maris.
Plaintiff’s proposed notice encompasses both sub-classes at both
Ann’s Choice and Maris.

As the Court concludes that Plaintiff

failed to make the modest factual showing necessary to provide
notice for the pre-shift sub-class at both facilities, and
Plaintiff’s notice would reach plaintiffs at both facilities,
Plaintiff’s proposed notice is too broad.
Second, unlike Plaintiff’s claim for pre-shift work,
Plaintiff showed similarly situated plaintiffs at both Ann’s
Choice and Maris.

Nevertheless, Plaintiff’s proposed class with

respect to meal-break work is still too broad because it
encompasses employees that must clock in and clock out for meal
break.

Defendants’ documentary evidence demonstrates that all

proposed plaintiffs younger than eighteen years old should not
be part of Plaintiff’s proposed collective action.

Defendants’

handbook explicitly states that all persons younger than
eighteen years old must clock in and clock out for meal breaks.
18

See Hours of Work and Paydays, Pl.’s Br. Ex. C (“Employees under
18 must punch in and out for their thirty-minute break to
validate that they have actually taken their break.”).
Consistent with the Court’s gate-keeping role for providing
notice under Hoffman, the clock-in-clock-out requirement for
employees under eighteen years old precludes the Court, absent
some other factual showing by Plaintiff, from allowing notice to
be sent to all non-exempt employees.

Proposed plaintiffs

younger than eighteen years old simply have no claim, based upon
Plaintiff’s alleged facts, to unpaid wages for meal-break work.9
Accordingly, the Court will deny Plaintiff’s Motion without
prejudice.

Plaintiff may file a revised notice, if appropriate.

9

Plaintiff argues that Defendants have not “produced
any discovery supporting their use of appropriate timekeeping
practices with regard to non-exempt employees under 18 years of
age.” Pl.’s Reply Br. in Supp. of Mot. Authorizing Notice to
Similarly Situated Persons n.3, ECF No. 20 [hereinafter Pl.’s
Reply Br.]. Yet, Plaintiff fails to make a factual showing as
to these particular proposed plaintiffs given the clear
documentary evidence that employees under eighteen years of age
must clock in and clock out. The Court is not weighing the
evidence here, but viewing Plaintiff’s “evidence” of a
conclusory statement that the automatic deduction policy applies
to all employees in light of the documentary evidence that
Plaintiff herself submitted that contradicts her own statement.
See Bramble, 2011 WL 1389510, at *5 n.6. To the extent that
Plaintiff can put forth some specific facts that align these
under-eighteen employees with Plaintiff’s claims, Plaintiff may
do so if she chooses to re-file her motion for conditional
certification.
19

V.

CONCLUSION
For the reasons set forth above, the Court will deny

Plaintiff’s Motion Authorizing Notice to Similarly Situated
Persons without prejudice.

An appropriate order will follow.

20