Francis v. ManpowerGroup US Inc et al

Filing 33

ORDER signed by Judge Brett Ludwig on 1/26/21 granting in part 19 Motion to Certify Class and setting deadlines. (cc: all counsel) (MP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

KAREN FRANCIS,
Plaintiff,
Case No. 16-cv-1477-bhl
v.
MANPOWERGROUP US INC,
EXPERIS US INC,
Defendants.

DECISION AND ORDER

Plaintiff Karen Francis brings this individual and collective action against defendants
ManpowerGroup US Inc. and Experis US Inc. under the Fair Labor Standards Act of 1938
(FLSA), 29 U.S.C. §201 et seq., for unpaid overtime compensation. (ECF No. 1.) Francis filed
a motion for conditional certification and court-authorized notice to potential opt-in plaintiffs
under FLSA section 216(b).1 (ECF No. 19.) After the motion was fully briefed, on October 15,
2020, the Court held a status conference, and took the motion under advisement. The Court will
now grant Francis’s motion for conditional certification in part and, consistent with discussions
at the status conference, refer the case to a magistrate judge for mediation.
FACTUAL BACKGROUND
Defendants ManpowerGroup US Inc. and Experis US Inc., (collectively Experis) are
affiliated human resource companies headquartered in Milwaukee, Wisconsin. (ECF No. 14.)
Among other things, Experis provides talent acquisition and recruiting services to clients through
a division known as Recruiting Process Outsourcing (RPO). (ECF No. 23-1.) RPO services are
1

The motion also purports to be made by CheyAnne Tatum, who filed a Notice of Consent to Join Lawsuit just
before the conditional certification motion was filed. (ECF No. 18.) The Court has not granted permission to
amend the complaint to add Tatum as a second plaintiff and it was premature for her to opt-in to any class prior to
conditional certification. Cf. Ervin v. OS Rest. Servs., Inc., 632 F.3d 971, 974 (7th Cir. 2011) (“The conditional
approval process is a mechanism used by district courts to establish whether potential plaintiffs in the FLSA
collective action should be…given the opportunity to opt in to the collective action.”). Accordingly, the Court will
treat Francis as the sole moving plaintiff.

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managed through individualized units, called Programs, developed specifically for each client.
(Id.) Between October 2013 and March 2017, RPO operated 164 distinct Programs and engaged
2,476 employees. (Id.) Each RPO Program is designed to meet a client’s talent acquisition need
and has its own separate goals, recruitment parameters, and management schemes; some clients
are even allotted multiple RPO Programs. (Id.)
Experis employs two kinds of recruiters in its RPO Programs: (1) hourly, nonexempt
Associate Recruiters; and (2) salaried, exempt Senior Recruiters, also referred to as Recruiting
Specialists. (ECF No. 23, 23-1, 23-4.) The duties and, accordingly, compensation of Associate
Recruiters and Senior Recruiters vary across RPO’s Programs. (Id.; see ECF No. 23-3, 23-6.)
Because Associate Recruiters are classified as nonexempt, they are eligible for overtime
compensation. (ECF No. 23-1.) In the three years prior to the conditional certification motion,
Experis reports that almost half (42%) of RPO’s nonexempt employees received some overtime
compensation. (Id.)
Francis worked for RPO’s Comcast West Program under the management of Client
Delivery Director Rachel Boyd. (ECF No. 20, 23-1, 23-4.) According to Francis, she served for
almost four years as an Associate Recruiter, followed by a five-month stint as a Senior Recruiter.
(ECF No. 20.) All recruiters in the Comcast West Program were given performance quotas to
meet and were expected to record their time spent working towards those quotas in an internal
software program. (ECF No. 23-4.) The recruiters were also required to follow the policies
articulated in a handbook created and distributed by Boyd. (Id.; ECF No. 23-1.)
During the relevant time period, Associate Recruiters in the Comcast West Program were
responsible for reviewing application materials submitted by candidates and searching for
additional potential candidates online and in person. (ECF No. 23-4.) Associate Recruiters
reporting to Boyd conducted screening interviews before referring the candidate to Comcast and
followed up with referred candidates about the hiring process. (Id.) After referred candidates
were interviewed by Comcast, Associate Recruiters were tasked with informing rejected
candidates of their unsuccessful attempt. (Id.) The Boyd handbook instructed Associate
Recruiters to work no more than forty hours a week and prohibited overtime hours unless they
had been approved in advance by a manager. (ECF No. 23-2.) This was not the case for
recruiters in other RPO programs, not managed by Boyd. (ECF No. 23, 23-1, 23-7.)

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Senior Recruiters in the Comcast West Program also reviewed application materials and
identified potential candidates for open positions, but their work was subject to little or no review
by management. (ECF No. 23-4.) Some of Boyd’s Senior Recruiters were tasked with preparing
training materials and serving as mentors for new recruiters, others were placed in Comcast’s
place of business to maintain a good working relationship and open communication with the
client, and some Senior Recruiters were assigned duties to analyze and report on the team’s
metrics, prioritization of workload, and sourcing strategies. (Id.)
As an Associate Recruiter, Francis alleges she was limited to reporting only eight hours
of work each workday even though she often worked longer than eight hours and on weekends to
meet her position’s performance quotas. (ECF No. 20.) As a salaried Senior Recruiter, Francis
explains she was considered exempt and ineligible for overtime even though she regularly
worked more than forty hours a week and performed essentially the same job duties she had as
an Associate Recruiter. (Id.)
ANALYSIS
The Fair Labor Standards Act permits the filing of collective actions “against any
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). Such an action requires potential employee
plaintiffs to “opt in” to the collective by filing a written consent to join the action, in contrast
with a class action permitted under Rule 23, which requires potential plaintiffs to “opt out” of the
action. Id.; Fed. R. Civ. P. 23; see Bigger v. Facebook, Inc., 947 F.3d 1043, 1046 n.1 (7th Cir.
2020) (explaining the differences between a collective action under FLSA and a class action
under Fed. R. Civ. P. 23).
On March 3, 2017, Francis moved for conditional certification of two classes of
employees:
(a) All current and former non-exempt hourly Associate Recruiters, Recruiting
Consultants, Contract Recruiters, and/or other non-exempt hourly recruiters
who worked for ManpowerGroup US Inc. and/or Experis US, Inc. both d/b/a
ManpowerGroup Solutions at any time during the last three years.
(b) All current and former salaried Recruiting Specialists who worked for
ManpowerGroup US Inc. and/or Experis US, Inc. both d/b/a ManpowerGroup
Solutions at any time during the last three years.
(ECF No. 19.)

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District courts have discretion to facilitate notice to potential plaintiffs in a FLSA
collective action to implement the “opt in” procedure. Bigger, 947 F.3d at 1046-47 (citing
Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170-71 (1989)). “The critical inquiry in
determining whether a court should exercise its discretion to authorize the sending of notice to
potential plaintiffs is whether the representative plaintiff has shown that she is similarly situated
to the potential class plaintiffs.” Austin v. CUNA Mut. Ins. Soc., 232 F.R.D. 601, 605 (W.D. Wis.
2006).
In making this determination, courts generally follow a two-step approach. Mitchell v.
Trilliant Food & Nutrition, LLC, No. 19-C-147, 2020 WL 1181945, at *1 (E.D. Wis. Mar. 12,
2020). In step one, the court must determine whether the plaintiff has made “a modest factual
showing” of a common policy or nexus between her and the proposed collective, thus
establishing “a ‘reasonable basis’ for believing that she is similarly situated to potential”
plaintiffs sufficient to warrant sending notice to the collective with an opportunity to “opt in” to
the action. Krupp v. Impact Acquisitions LLC, No. 14-C-950, 2016 WL 7190562, at *4-*5 (E.D.
Wis. Dec. 12, 2016) (citing Adair v. Wisconsin Bell, Inc., No. 08-C-280, 2008 WL 4224360, at
*3-*4 (E.D. Wis. Sept. 11, 2008)). Step two usually occurs on the defendant’s motion for
decertification and requires a court to determine if, in fact, the opted-in plaintiffs are similarly
situated. Mitchell, 2020 WL 1181945, at *2.
1. The Record Does Not Support the Overly Broad Classes that Francis Proposes.
Francis asserts that she has met the minimal burden of establishing that the other potential
plaintiffs in her proposed classes are similarly situated to her. (ECF No. 22.) Specifically,
Francis claims that Experis subjects all its Associate Recruiters to ambitious quotas that cannot
be met in the time given while also imposing a de facto prohibition on overtime compensation.
(ECF No. 20, 22.) She also claims that all of Experis’s salaried Senior Recruiters were
misclassified as exempt from earning overtime compensation, despite having essentially the
same duties as Associate Recruiters, and that Experis exploited this misclassification to avoid
paying its Senior Recruiters overtime compensation. (Id.)
Experis has provided undisputed and compelling evidence concerning the organization of
its RPO division that shows the management policies governing the Comcast West Program
were limited to that Program. (ECF No. 23, 23-1, 23-4.) Experis has also explained that the
duties and compensation of Senior Recruiters vary across different Programs and argues that the

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duties of all Senior Recruiters require the discretion necessary to be classified as exempt from
overtime compensation. (ECF No. 23, 23-1, 23-3, 23-4, 23-7.)
Based on the record, Francis has not proved a common policy or nexus with either of her
proposed classes. Simply put, she has not shown that she is similarly situated to all Associate
Recruiters or Recruiting Specialists employed by Experis. To the contrary, Experis has
presented compelling evidence to show that the RPO Programs are run and managed on an
individualized basis. The Court will not conditionally certify the two classes proposed by
Francis.
2. The Record Does Support Conditional Certification of Narrower Classes,
Limited to the Comcast West Program in which Francis Was Employed.
Rejecting Francis’s proposed classes does not end the matter, however. The Court has
the power and responsibility to define “the scope of the potential FLSA collective action.”
Hollins v. Regency Corp., 867 F.3d 830, 834 (7th Cir. 2017). The Seventh Circuit has
emphasized the district court’s duty to “assess [plaintiff’s] proposed definition and assure itself
that the employees identified are raising similar FLSA claims. In exercising this power, district
courts do not hesitate to pare down the group or to deny conditional certification altogether.” Id.
The record establishes that Francis is sufficiently similarly situated to other Associate
Recruiters and Senior Recruiters within the Comcast West Program. With respect to the
Associate Recruiters, the record shows a common governing policy (the Boyd handbook) that
uniformly applied to all Associate Recruiters working in the Comcast West Program. Francis
has also established that the other Associate Recruiters in the Comcast West Program were
required to meet the same performance quotas and suffered the same burdens. With respect to
Senior Recruiters, Francis asserts (and Boyd confirms) that all Senior Recruiters in the Comcast
West Program were subject to the same performance quotas and governing policies articulated in
the Boyd handbook. Boyd also confirms that all Senior Recruiters in the Comcast West Program
have the same primary duty as Associate Recruiters: sourcing and shepherding potential
candidates through the hiring process for open positions with Comcast. Boyd’s assertions that
some Senior Recruiters also act as mentors, physically work at the client’s place of business, or
analyze and report on the team’s performance do not detract from Francis’s claims or erode her
evidentiary support. Instead, Boyd’s assertions serve to bolster Francis’s claims because none of
those extra duties seem to qualify the role of Senior Recruiter in the Comcast West Program as
administratively exempt from earning overtime under FLSA’s regulations.

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Accordingly, the Court will conditionally certify narrowed versions of the two classes
Francis has proposed. Both proposed classes are modified and limited to employees holding the
same positions as Francis in the Comcast West Program.
3. Court-Authorized Notice
Francis has attached a proposed “Notice of Right to Join Lawsuit” and “Consent to Join
Lawsuit” forms to her motion. (ECF No. 19-1.) She asks the Court to authorize the circulation
of the proposed notice via first-class mail and email to the potential plaintiffs in the conditionally
certified collective, and to send them a text message. (Id.; ECF No. 19-2.) She seeks contact
information for the collective’s members from Experis by way of an order requiring them to
produce their names, last-known addresses, phone numbers, email addresses, and the last four
digits of their Social Security numbers. (Id.) Francis also asks the Court to order Experis to
produce the job titles and dates of employment of the collective’s members. (Id.) Experis did
not respond to this portion of Francis’s motion.
This Court has discretion to implement the opt-in provision of FLSA section 216(b) by
facilitating notice to potential plaintiffs. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165,
169-70 (1989) (“Section 216(b)'s affirmative permission for employees to proceed on behalf of
those similarly situated must grant the court the requisite procedural authority to manage the
process of joining multiple parties in a manner that is orderly, sensible, and not otherwise
contrary to statutory commands or the provisions of the Federal Rules of Civil Procedure.”).
However, “[i]n exercising the discretionary authority to oversee the notice-giving process, courts
must be scrupulous to respect judicial neutrality. To that end, trial courts must take care to avoid
even the appearance of judicial endorsement of the merits of the action.” Id. at 174.
The Court will grant Francis’s motion for an order requiring Experis to produce the
information requested for each potential plaintiff in the two conditionally certified collectives as
modified by the Court. The Court finds that the information requested will aid in the orderly and
sensible management of the joinder process. However, the Court will require plaintiff’s counsel
to submit amended proposed forms and an updated text message for Court-approval, consistent
with the terms of this decision.
At the October 15, 2020 status conference, the parties briefly discussed whether and how
equitable tolling should apply to the claims of the potential opt-in plaintiffs. The Court declined
to address the issue at that time because it had not yet been briefed. Because the matter of

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equitable tolling is still not properly before the Court, the Court declines to rule on that issue in
this Order.
CONCLUSION
IT IS HEREBY ORDERED:
1. Plaintiff’s motion for conditional certification, ECF No. 19, is GRANTED in part. The
Court conditionally certifies the plaintiff’s two classes as:
a. All current and former non-exempt hourly Associate Recruiters, Recruiting
Consultants, Contract Recruiters, and/or other non-exempt hourly recruiters who
worked for ManpowerGroup US Inc. and/or Experis US Inc., both d/b/a
ManpowerGroup Solutions, in the RPO organization’s Comcast West Program;
and
b. All current and former salaried Recruiting Specialists and/or Senior Recruiters
who worked for ManpowerGroup US Inc. and/or Experis US Inc., both d/b/a
ManpowerGroup Solutions, in the RPO organization’s Comcast West Program.
2. Within seven days of the date of this Order, plaintiff shall file amended proposed “Notice
of Right to Join Lawsuit” and “Consent to Join Lawsuit” forms to replace ECF No. 19-1,
and an amended proposed text message to replace ECF No. 19-2. Defendants will then
have seven days to file a response containing their objections, if any, to the proposed
forms and text message.
3. Once the modified forms and text message are approved by the Court, putative FLSA
collective members shall have sixty (60) days from circulation of the notice via first class
mail, email, or text message, whichever occurs first, to file their written consent forms.
4. Within fourteen days of the date of this Order, the defendants shall provide plaintiff’s
counsel with an electronic and importable database containing the following information
for each potential member of the two classes: full names, last known addresses, dates of
employment, job titles, phone numbers, email addresses, and the last four digits of their
Social Security numbers.
5. This case will be referred for mediation in a separate Order.
Dated at Milwaukee, Wisconsin on January 26, 2021.
s/ Brett H. Ludwig
BRETT H. LUDWIG
United States District Judge

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