Davis et al v. Kohler Co.

Filing 69

ORDER ADOPTING MAGISTRATE JUDGES REPORT AND RECOMMENDATION AND GRANTING PLAINTIFFS AMENDED MOTION TO CERTIFY. Signed by Chief Judge S. Thomas Anderson on 8/30/17. (Anderson, S. Thomas)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DIVISION OF TENNESSEE
EASTERN DIVISION

RICHARD DAVID and MATT HOFFMAN
individually and on behalf of others similarly
situated,

)
)
)
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)
)
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Plaintiffs,
vs.
KOHLER CO.,
Defendant.

No. 2:15-cv-01263-STA-egb

ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
AND GRANTING PLAINTIFFS’ AMENDED MOTION TO CERTIFY

Before the Court is Plaintiffs Richard David and Matt Hoffman’s Amended Motion to
Certify (ECF No. 46). The Motion was referred to the United States Magistrate Judge, and the
Magistrate Judge has issued his Report and Recommendation (ECF No. 60). For the reasons set
forth below, the Court ADOPTS the Report and Recommendation, GRANTS Plaintiffs’
Amended Motion to Certify, and orders other appropriate relief.
BACKGROUND
The Magistrate Judge has reported the following background facts, which the Court
hereby adopts as its own findings. Plaintiffs were hourly-paid manufacturing employees of
Defendant Kohler Co. (Amended Compl., ECF No. 40, ¶ 4, 6; Exhibits C-F.) Plaintiffs Richard
Davis and Matt Hoffman each alleges that he was employed at Kohler’s manufacturing plant in
Union City, Tennessee as an hourly-paid manufacturing employee within the three years
preceding the filing of this suit. Each alleges that he performed off-the-clock work (including

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before, during, or after shifts and through meal breaks) without being clocked in and therefore
without compensation in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §
216(b). Since Davis and Hoffman filed their initial Complaint, fourteen other Plaintiffs have
given their consent to join the action: Michael Swain (Huntsville, Alabama), Larry McClendon
(Sheridan, Arkansas), Benjamin Pruitt (Union City, Tennessee), Tasia Jackson (Union City,
Tennessee), Angela Kroll (Kohler, Wisconsin), Jeffrey King (Brownwood, Texas), Candise
McKellar (Hattiesburg, Mississippi), Janet Bundy (Brownwood, Texas), Patricia McClendon
(Hattiesburg, Mississippi), Thomas Hence (Hattiesburg, Mississippi), Jamar Drumgoole
(Sheridan, Arkansas), Derick Bennett (Hattiesburg, Mississippi), Latasha Smith (Union City,
Tennessee), and Danny L. Keene (Kohler, Wisconsin).
Each of the 14 opt-in Plaintiffs have filed declarations indicating that that they were also
hourly-paid manufacturing employees of Kohler within the three years preceding the filing of
this suit and were subject to Defendant’s off-the-clock policies or practices (including work
performed before, during and after work and/or during meal breaks without being clocked in), all
of which deprived them of compensation and resulted in violations of FLSA overtime
requirements. All of the opt-in Plaintiffs assert that they were similarly situated to Plaintiffs
Davis and Hoffman during the class period. Opt-in Plaintiff Janet Bundy, a Kohler employee in
Brownwood, Texas, also indicated in her declaration that she “observed other hourly-paid coworkers performing ‘off-the-clock’ work before, during or after their shifts during [her]
employment at Kohler during the last three years.” (See “Consent Declarations,” Collective
Exhibit F, Bundy Decl. ¶ 5.)
The Magistrate Judge has recommended that the Court grant Plaintiffs’ Amended Motion
to Certify. The Magistrate Judge concluded that Plaintiffs have met their lenient burden at this

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stage of the case to show that they are similarly situated to the putative class they seek to
represent, despite the fact that the named Plaintiffs and the opt-in Plaintiffs are employed at six
different facilities working different jobs in different departments.

The Magistrate Judge

reasoned that these differences could result in decertification at a later stage of the case.
However, for purposes of conditional certification, the Magistrate Judge found that Plaintiffs had
met their burden to show that they were similarly situated. The Magistrate Judge therefore
recommended as follows:
(1) the Court issue an order authorizing this case to proceed as a collective action against
Defendant Kohler Co. and directing the parties to confer and file a mutually acceptable notice;
(2) the Court issue an order directing Defendant to immediately provide a list of names,
last known addresses, and last known telephone numbers for all putative class members within
the last three years;
(3) the Court order Defendant to post the notice prominently at each of Defendant’s
manufacturing facilities in the United States where putative class members work. This notice
shall also be mailed (at Plaintiffs’ expense) to each such current and former hourly-paid
manufacturing employee who was so employed during the last three years so each can assess
their claims on a timely basis as part of this litigation; and
(4) the Court issue an Order tolling the statute of limitations for the putative class as of
the date the motion is granted (except for those who already have opted into this action) and
requiring that the opt-in Plaintiffs’ consent forms be deemed “filed” on the date they are
postmarked.
Kohler has filed timely objections to the Magistrate Judge’s report and recommendation.
Just as it did in opposing Plaintiffs’ Amended Motion to Certify, Defendant emphasizes the

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disparities among the members of the putative class. According to Kohler, Plaintiffs have not
shown that they are similarly situated to the rest of the class they seek to represent, that all
members of the putative class suffered from a single company policy in violation of the FLSA,
or that a common theory of liability unifies their claims against Kohler. The putative class is
defined so broadly as to include all of Kohler’s hourly-wage workers. In other words Plaintiffs
seek to represent as many as 8,100 Kohler employees working at six facilities, all located in
different states. The putative class consists of employees working in widely divergent positions
with distinct job descriptions. Each facility has its own management structure and timekeeping
procedures. In addition to the sheer number and variety of work settings, Defendant also cites
the fact that not all of the opt-in Plaintiffs experienced the same practices described in the
Amended Complaint. Kohler contends that the Magistrate Judge reached his recommended
conclusion to grant certification but without an analysis of these specific showings.
To the extent that the Court is inclined to grant conditional certification, Kohler requests
that the Court define more precisely the putative class. Plaintiffs seek conditional certification of
a class of all hourly employees of Kohler. Defendant again emphasizes the factual differences
between the work settings of each member of the putative class. The Court should therefore
redraw the parameters of the putative class with these distinctions in mind. Defendant also
suggests that class treatment is inappropriate in light of the relatively small number of Plaintiffs
who have opted into the suit.

Finally, Defendant objects to the Magistrate Judge’s

recommendations that the Court toll the statute of limitations for all prospective opt-in plaintiffs,
that Kohler be required to provide the telephone numbers of its employees immediately, and that
it post notice of the collective action at its facilities.

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Plaintiffs have filed a response to Defendant’s objections. Plaintiffs contend that they
have made a prima facie showing that they are similarly situated to the members of the putative
class, i.e. “all Kohler hourly-paid manufacturing employees” who were subject to Kohler’s “offthe-clock” policies. Pls.’ Resp. to Def.’s Obj. 10 (ECF No. 62).

Plaintiffs argue that at the

conditional certification stage, the Court is required to resolve any factual disputes in favor of
Plaintiffs. Plaintiffs also defend the Magistrate Judge’s recommendation to require Kohler to
produce the telephone numbers of each member of the putative class and post notice in their
facilities.
Following the submission of their response to Defendant’s objections, each named
Plaintiff filed a supplemental declaration, in which they described in arguably greater detail just
how Kohler failed to pay them for compensable time. Kohler has filed a Motion to Strike (ECF
No. 65) the supplemental declarations. According to Kohler, Plaintiffs previously filed the same
supplemental declarations (ECF No. 53) (along with declarations from five opt-in Plaintiffs) in
conjunction with a reply brief in support of their Amended Motion to Certify. Kohler filed a
motion to strike the declarations at that time, arguing in part that it was improper to file the
declarations with a reply brief. Plaintiffs ultimately withdrew all of the declarations as well as
their reply. As a result, the declarations were not part of the record considered by the Magistrate
Judge. Now, Plaintiffs have re-filed what appear to be identical declarations. Kohler argues that
Plaintiffs have improperly attempted to submit additional proof that the Magistrate Judge never
considered in making his recommendation on the Amended Motion to Certify. Defendant
therefore requests that the Court strike the declarations.
Plaintiffs have responded in opposition to the Motion to Strike. While Plaintiffs concede
that the presentation of new arguments which were not raised before the Magistrate Judge is

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disfavored, the presentation of new evidence is not.

Plaintiffs state that the supplemental

declarations bolster their showing that the named Plaintiffs are similarly situated to the putative
class. Therefore, the Court can properly consider the supplemental declarations as part of its
review of the report and recommendation.
STANDARD OF REVIEW
Kohler argues, and Plaintiffs have not contested the point, that the Court should review
the Magistrate Judge’s report and recommendation de novo. Pursuant to 28 U.S.C. § 636, the
Magistrate Judge may issue a report and recommendation for any dispositive motion. 28 U.S.C.
§ 636(b)(1)(B). The Court must “make a de novo determination of those portions of the report or
specific proposed findings or recommendations to which objection is made.”

§ 636(b)(1)(C).

After reviewing the evidence, the Court is free to accept, reject, or modify the proposed findings
or recommendations of the Magistrate Judge. Id. The Court need not review, under a de novo or
any other standard, those aspects of the report and recommendation to which no specific
objection is made. Thomas v. Arn, 474 U.S. 140, 150 (1985). Rather, the Court may simply
adopt the findings and rulings of the Magistrate Judge to which no specific objection is filed. Id.
at 151.
While the Court reviews the Magistrate Judge’s recommendations on dispositive issues
like certification and equitable tolling de novo, the Court reviews the Magistrate Judge’s nondispositive procedural recommendations on notice under a far more deferential standard. The
Magistrate Judge’s recommendations on the form of notice are non-dispositive matters subject to
the clearly erroneous or contrary to law standard of review. Pursuant to 28 U.S.C. § 636(b), a
district court shall apply a “clearly erroneous or contrary to law” standard of review to orders on
“nondispositive” preliminary matters. United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001)

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(citing United States v. Raddatz, 447 U.S. 667, 673 (1980)); see also 28 U.S.C. § 636(b)(1).
Federal Rule Civil Procedure 72(a) states that a district judge “shall consider” objections to a
magistrate judge’s order on a non-dispositive matter and “shall modify or set aside any portion of
the magistrate judge’s order found to be clearly erroneous or contrary to law.” Fed. R. Civ. P.
72(a); Bell v. Int’l Broth. of Teamsters, No. 96-3219, 1997 WL 103320, at*4 (6th Cir. Mar. 6,
1997).
“The clearly erroneous standard applies only to factual findings made by the Magistrate
Judge, while legal conclusions will be reviewed under the more lenient contrary to law
standard.” E.E.O.C. v. Burlington N. & Santa Fe Ry. Co., 621 F. Supp. 2d 603, 605 (W.D. Tenn.
2009) (quotation omitted).

“When examining legal conclusions under the contrary to law

standard, the Court may overturn any conclusions of law which contradict or ignore applicable
precepts of law, as found in the Constitution, statutes, or case precedent.” Doe v. Aramark Educ.
Res., Inc., 206 F.R.D. 459, 461 (M.D. Tenn. 2002) (citing Gandee v. Glaser, 785 F. Supp. 684,
686 (S.D. Ohio 1992), aff'd, 19 F.3d 1432 (6th Cir. 1994) (internal quotation marks omitted));
see also 32 Am. Jur. 2d Federal Courts 143 (2008) (“A magistrate judge’s order is contrary to
law when it fails to apply or misapplies relevant statutes, case law, or rules of procedure”).
ANALYSIS
I. Kohler’s Motion to Strike
As a threshold matter, the Court considers Kohler’s Motion to Strike the supplemental
affidavits filed by Plaintiffs. It appears to be common ground that Plaintiffs’ supplemental
affidavits were not part of the record before the Magistrate Judge and therefore played no role in
his analysis of the Amended Motion to Certify. In fact, Plaintiffs had previously filed the
affidavits with a reply brief in support of the Amended Motion to Certify, only to withdraw the

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reply brief and affidavits in the face of Kohler’s earlier motion to strike. Plaintiffs have not
shown why their resubmission of the affidavits after the Magistrate Judge had made his
recommendation was proper under the circumstances.

In any event, the Court finds it

unnecessary to consider the affidavits at this stage of the case. For the reasons more fully
explained below, the Court adopts the Magistrate Judge’s recommendation and grants Plaintiffs’
Amended Motion to Certify without reference to the supplemental affidavits. Therefore, the
Court will GRANT Kohler’s Motion to Strike.
II. Amended Motion to Certify
Turning now to conditional certification, the issue presented is whether the named
Plaintiffs have shown that they are similarly situated to the putative class they seek to represent.
Section 216(b) of the FLSA provides as follows:
An Action [under § 206] may be maintained against any employer
(including a public agency) in any Federal or State court of competent
jurisdiction by any one or more employees for and on behalf of himself or
themselves and other employees similarly situated. 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.
29 U.S.C. § 216(b).
Suits brought pursuant to section 216(b) are collective actions, as opposed to class
actions, in that similarly situated plaintiffs are permitted to “opt into” the suit rather than “opt
out” as required by Rule 23 of the Federal Rules of Civil Procedure. Comer v. Wal-Mart Stores,
Inc., 454 F.3d 544, 546 (6th Cir. 2006). Courts generally employ a two-stage certification
process in FLSA collective actions. At the initial stage, the Court determines whether to certify
the proposed class conditionally. Monroe v. FTS USA, LLC, 860 F.3d 389, 397 (6th Cir. 2017).
(reaffirming the continuing validity of the two-stage certification process and the similarly
situated analysis adopted in O’Brien v. Ed Donnelly Enterp., Inc., 575 F.3d 567 (6th Cir. 2009)).

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Conditional certification allows the Court to order “notice to potential plaintiffs and to present
them with an opportunity to opt in.” Lindberg v. UHS of Lakeside, LLC, 761 F. Supp. 2d 752,
757-58 (W.D. Tenn. 2011). This early certification of a class at the notice stage is “conditional
and by no means final.” Comer, 454 F.3d at 546. At the second stage of certification, a district
court employs “a more exacting standard” and “looks more closely at whether the members of
the class are similarly situated,” an assessment based not just on the allegations of a complaint
but a fully developed evidentiary record. Monroe, 860 F.3d at 547.
To obtain conditional certification to proceed as a collective action, the named plaintiff
must demonstrate that he is “similarly situated” to the employees he seeks to represent.
Although the FLSA does not define the term “similarly situated,” the Sixth Circuit has explained
that “plaintiffs are similarly situated when they suffer from a single, FLSA-violating policy, and
when proof of that policy or of conduct in conformity with that policy proves a violation as to all
the plaintiffs.” O’Brien, 575 F.3d at 584, abrogated on other grounds by Campbell-Ewald Co. v.
Gomez, 136 S. Ct. 663 (2016)). Other factors are relevant to the similarly situated analysis,
including but not limited to the following: “(1) the factual and employment settings of the
individual plaintiffs; (2) the different defenses to which the plaintiffs may be subject on an
individual basis; and (3) the degree of fairness and procedural impact of certifying the action as a
collective action.” Monroe, 860 F.3d at 397 (citing O’Brien, 575 F.3d at 584 and 7B Wright,
Miller & Kane, Federal Prac. & Proc. § 1807 at 487 n.65 (3d ed. 2005)).
The plaintiff’s burden at the first stage is “fairly lenient” and requires only “a modest
factual showing” that he is similarly situated to the other employees he seeks to notify. Comer,
454 F.3d at 547. A lead plaintiff need only prove at the early stage that the putative class shares
“common theories of defendant[’s] statutory violations, even if the proofs of these theories are

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inevitably individualized and distinct.” Id. Because the Court makes its determination at this
initial stage under a more forgiving standard of review, the Sixth Circuit has recognized that it
“typically results in conditional certification of a representative class.” O’Brien, 575 F.3d at 584.
Having reviewed the Magistrate Judge’s report and recommendation de novo, the
Defendant’s objections to the report, and the entire record of the proceedings, the Court finds
good cause to grant Plaintiffs’ Amended Motion to Certify. Plaintiffs have discharged their
lenient burden to show how they are similarly situated to the other Kohler employees they seek
to represent. The named Plaintiffs as well as the opt-in Plaintiffs have shown through the
pleadings and their supporting declarations that their “claims are unified by common theories of
[Kohler’s] statutory violations.” Monroe, 860 F.3d at 398. Each Plaintiff and opt-in Plaintiff
worked during the class period as a full-time, hourly manufacturing employee at one of six
Kohler facilities in the United States. Each performed compensable, off-the-clock work for
which they did not receive pay, specifically work before and after their scheduled shifts and
during lunch breaks. The Court finds that the allegations in this case track the FLSA allegations
in O’Brien, the leading Sixth Circuit FLSA case on conditional certification. Like the plaintiffs
in O’Brien, Plaintiffs here allege that their employer required them “to work ‘off the clock,’ that
is, before they had punched into, or after they had punched out of, the computerized system that
tracked employees’ start, end, and break times.” O’Brien, 575 F.3d at 572. These allegations
suffice to show that the named Plaintiffs are similarly situated to other hourly manufacturing
employees working at five other Kohler’s facilities. Therefore, the Court finds good cause to
grant conditional certification at this initial phase.
Kohler raises a number of arguments to rebut Plaintiffs’ showing, highlighting first the
potential for the putative class to exceed 8,000 members and the multiplicity of job functions and

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settings in which each class member worked. In assessing whether putative class members are
similarly situated, the Court must consider the “factual and employment settings of the individual
plaintiffs.” Monroe, 860 F.3d at 397. It is true that the Amended Complaint and the declarations
filed by the named Plaintiffs and opt-in Plaintiffs allege that Plaintiffs were “manufacturing
employees, or similarly-titled employees” of Kohler. Am. Compl. ¶ 8. Kohler disclaims that it
has such job title for its employees, and the Court has its own concerns about the nebulous nature
of the term. This is to say nothing of the fact that the named Plaintiffs worked for Kohler at its
Union City, Tennessee facility, and the opt-in Plaintiffs worked at other Kohler facilities located
in five different states.
It is entirely possible then, as Kohler argues, that the putative class will be so large and
diverse that Plaintiffs will not be able to show that they are similarly situated to the putative
class. The fact that the putative class may be very large indeed and include “manufacturing
employees” working for Kohler in quite different “factual and employment settings” will not
prevent conditional certification at this initial stage of the process. The proceedings thus far
have not borne out Kohler’s concerns about a putative class of thousands. In the almost two
years since Plaintiffs filed suit in November 2015, only 14 Kohler employees have opted in to
the suit. Ultimately, differences in the factual and employment settings of the class members
may preclude final certification of the collective action, or at the very least prevent all of the optin Plaintiffs from remaining in the putative class. O’Brien, 575 F.3d at 586 (“In general,
plaintiffs who are not similarly situated—for instance, plaintiffs who did not allege suffering
under either unlawful practice—could be dismissed while keeping intact a partial class.”).
However, that is a question the Court need only reach at the second stage of the certification
process and on the basis of a fully developed factual record.

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Kohler has also raised important questions about the scope of the putative class, pointing
out that Plaintiffs seek certification of a nationwide class of Kohler employees. The Court finds
that Kohler’s objections as to defining the putative class as all manufacturing employees
“nationwide” are well taken.

Plaintiffs have adduced proof, however, only about alleged

violations at Kohler facilities in Tennessee, Alabama, Arkansas, Mississippi, Texas, and
Wisconsin. Plaintiffs have not shown that the facilities in these six states represent all of
Kohler’s manufacturing employees “nationwide.”

Plaintiffs have only supported their

allegations with affidavits from employees at these six facilities. As a result, the Court will only
certify a collective action of manufacturing employees at the facilities in these six states.
Kohler also calls attention to the differences in the nature of the violations alleged by
each Plaintiff and opt-in Plaintiff. The named Plaintiffs have offered specific allegations about
the methods Kohler used to violate the FLSA at the Union City facility: unpaid preliminary
work, automatic deductions for lunch breaks, and a policy of rounding time entries.1

By

contrast, some opt-in Plaintiffs have only affirmed that Kohler required them to work off the
clock, while others have alleged that Kohler required them to work off the clock and through
unpaid lunch breaks. The Sixth Circuit has recently explained that for purposes of certifying a
collective action, an employer may adopt a policy in violation of the FLSA but implement the
policy by a variety of methods. Id. at 403 (stating that the “definition of similarly situated does
not descend to such a level of granularity” that an FLSA plaintiff must pursue separate collective
actions for each distinct kind of violation of the statute). And just as with the varied factual
circumstances of each Plaintiff and opt-in Plaintiff’s terms and conditions of employment,

1

Kohler argues in its briefing that its rounding policy does not violate the FLSA.
Kohler’s affirmative defense is a matter properly taken up in a dispositive motion and not a
motion for conditional certification.
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discovery may reveal that some members of the putative class were subject to one type of
violation but not others. The Court concludes that none of these considerations mean the Court
should deny Plaintiffs conditional certification.
Kohler has further argued that some opt-in Plaintiffs were not actually Kohler employees
and instead were employees of temporary employment agencies. And Kohler contends that at
least one other opt-in Plaintiff’s FLSA claim is untimely. These distinctions perhaps suggest that
the members of the putative class have dissimilar claims, both factually and as a matter of law,
and that some will have merit and others will not, a critical factor in the Court’s similarly
situated analysis. Monroe, 860 F.3d at 397 (requiring the district court to consider “the different
defenses to which the plaintiffs may be subject on an individual basis”).

But the Court has

several ways to deal with these issues. The Court can best address them (1) in subsequently filed
dispositive motions (and not at the conditional certification stage); (2) by dividing the putative
class into subclasses, “a tried and true method of collective-action representation;” or (3) simply
through decertification. Id. at 418 (Sutton, J., concurring in part, dissenting in part) (“This does
not mean that a collective action was not an option in our case. It means only that plaintiffs
should have accounted for their distinct theories by dividing themselves into sub-classes, one
corresponding to each theory of liability under the statute . . . .”).
Finally, Kohler’s objections call into question whether the case is appropriate for
collective treatment at all, not only for the reasons already discussed but also due to the small
number of opt-in Plaintiffs who have given their consent to join in the action up to this point.
The Court must consider “the degree of fairness and procedural impact of certifying the action as
a collective action” in deciding whether certification is proper. Monroe, 860 F.3d at 397. The
current size of the putative class, small as it might be, nevertheless satisfies “the policy behind

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FLSA collective actions and Congress’s remedial intent by consolidating many small, related
claims of employees for which proceeding individually would be too costly to be practical.” Id.
at 405 (citing Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989)). And as with all
of the Court’s conclusions at the first stage of the certification process, the Court’s findings about
the fairness of collective treatment are conditional only, subject to further fact discovery.
Therefore, the Magistrate Judge’s recommendation to certify conditionally the collective
action is ADOPTED, and Plaintiffs’ Amended Motion to Certify is GRANTED. The Court
hereby certifies this case as a collective action with the putative class defined as follows:
All non-exempt, hourly-paid, manufacturing employees, or similarly-titled
employees, who worked as Kohler employees at Kohler facilities in Union City,
Tennessee; Huntsville, Alabama; Sheridan, Arkansas; Hattiesburg, Mississippi;
Brownwood, Texas; and Kohler, Wisconsin; who are currently employed with
Kohler or were employed with Kohler within the last three years; who regularly
worked 40 hours or more per week; and who worked off the clock in violation of
the Fair Labor Standards Act.
III. Equitable Tolling of the Statute of Limitations for Prospective Opt-in Plaintiffs
The Magistrate Judge has next recommended that the Court toll the statute of limitations
for the putative class as of the date the Amended Motion to Certify is granted and deem the
consent forms of future opt-in Plaintiffs “filed” on the date they are postmarked. The FLSA’s
statute of limitations is subject to equitable tolling. Kutzback v. LMS Intellibound, LLC, 233
F.Supp.3d 623, 628 (W.D. Tenn. 2017). Equitable tolling of an opt-in plaintiff’s FLSA claims is
particularly appropriate where “delays during the collective-action certification process
constitute ‘extraordinary circumstances’ beyond plaintiffs’ control.” Id. at 631. The Court
agrees with the Magistrate Judge’s recommendation to toll the statute of limitations period for
the prospective opt-in Plaintiffs to this action (except for those who already have given their
consent to opt in). Likewise, each opt-in Plaintiff’s consent form shall be deemed “filed” on the

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date the form is postmarked. Therefore, Kohler’s objection on this point is overruled, and the
Magistrate Judge’s recommendation is ADOPTED.
IV. Notice to the Putative Class
This

leaves

Defendant’s

objections

to

the

Magistrate

Judge’s

procedural

recommendations regarding notice to Kohler employees who may wish to joint the putative
class. The Magistrate Judge has recommended that Kohler be ordered to produce the names,
addresses, and telephone numbers of all potential class members and that Kohler post notice of
the action in all of its facilities.

Kohler objects to each aspect of the Magistrate Judge’s

recommendation about notice. The Court finds, however, that the Magistrate Judge’s procedural
recommendations are not clearly erroneous or contrary to law. Supplying the names, home
addresses, and phone numbers of the putative class members as well as posting notice in the
workplace are common features of FLSA cases in this District. E.g. Redmond v. NPC Int’l, Inc.,
2016 WL 7223468, at *8 (W.D. Tenn. Dec. 13, 2016) (approving the dissemination of employee
contact information and requiring notice to be posted in the workplace).
The Court does find good cause to provide the parties with additional deadlines and
procedures for the notice period. The Magistrate Judge has aptly recommended that the Court
order the parties to confer on the form the notice to the putative class should take. The parties
should confer on the notice and file a joint notice with the Court within 14 days of the entry of
this order. In the alternative, should the parties be unable to reach an accord on the form of the
notice, each party shall file its own proposed version of the notice within 14 days of the entry of
this order.
In the mean time, the Court directs the parties to confer about how much time Kohler
reasonably needs to produce the contact information. Kohler’s submission on the issue is due

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within 14 days of the entry of this order. Counsel should confer on the issue as required under
Local Rule 7.2(a)(1)(B). In the event the parties cannot reach agreement, Plaintiffs will have 14
days from Defendant’s filing in which to respond to Defendant’s position statement.
As far as the case management deadlines, the initial scheduling order anticipated a second
scheduling conference to be set within 21 days of the Court’s decision on the certification issue.
In lieu of a scheduling conference, the Court orders the parties to confer and submit a proposed
amended scheduling order within 21 days of the entry of this order. The amended scheduling
order should contain two specific deadlines not found in the initial scheduling order: a deadline
for Kohler to produce the contact information for the putative class and a deadline for
prospective opt-in plaintiffs to submit their consent forms. Rather than requiring Kohler to
produce the contact information for the members of the putative class immediately, the amended
scheduling order should contain a deadline for Kohler to produce the information, once the form
of the notice is finalized. As for the opt-in period, the Court finds good cause to allow 60 days
for the opt-in period, to begin on the date Kohler serves counsel for Plaintiffs with the contact
information for the members of the putative class.
CONCLUSION
Plaintiffs’ Amended Motion to Certify is GRANTED. The Court hereby orders as
follows:
(1) The Court authorizes this case to proceed as a collective action of a putative class
defined as follows:
All non-exempt, hourly-paid, Kohler manufacturing employees, or similarly-titled
employees, who worked as a Kohler employee at Kohler facilities in Union City,
Tennessee; Huntsville, Alabama; Sheridan, Arkansas; Hattiesburg, Mississippi;
Brownwood, Texas; and Kohler, Wisconsin; who are currently employed with
Kohler or were employed with Kohler within the last three years; who regularly

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worked over 40 hours or more per week; and who worked off the clock in
violation of the Fair Labor Standards Act;

(2) Counsel for the parties are to confer and file a mutually acceptable notice, or in the
alternative separate proposals for the notice, within 14 days of the entry of this order;
(3) Counsel for the parties are to confer and propose an amended scheduling order within
21 days of the entry of this order;
(4) Once the Court has approved the form of the notice, Defendant must post the notice
prominently at each of Defendant’s six manufacturing facilities where putative class members
are or were employed. The notice shall also be mailed (at Plaintiffs’ expense) to each such
current and former hourly-paid manufacturing employee who was so employed during the last
three years so each can assess their claims on a timely basis as part of this litigation; and
(6) The statute of limitations for the prospective opt-in Plaintiff is tolled as of the date of
the entry of this order (except for those who already have opted into this action); opt-in
Plaintiffs’ consent forms will be deemed “filed” on the date they are postmarked.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: August 30, 2017.

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