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United States District Court, Northern District of Illinois, Eastern Division

April 25, 2003


The opinion of the court was delivered by: John W. Darrah, United States District Judge


Plaintiff, Linda Taillon ("Plaintiff"), filed a four-count complaint against Defendant, Kohler Rental Power, Inc. ("Defendant"), alleging violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Count I); the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. and the Portal to Portal Act, 29 U.S.C. § 251 et seq. (Count II); the Illinois Minimum Wage Law, 820 Ill. Comp. Stat. 105/4a (Count III); and to collect unpaid wages pursuant to the Illinois Wage Payment and Collection Act, 820 Ill. Comp. Stat. 115 Ill. Comp. Stat. 115/1 et seq. (Count IV). Plaintiff has filed a Motion for an Order Authorizing Notice to Similarly Situated Persons Pursuant to 29 U.S.C. § 216 (b).

For the reasons that follow, Plaintiff's motion is granted.

The requirements for a class or collective action under the ELSA are governed by 29 U.S.C. § 216 (b). Section 216(b) provides:

An action to recover the liability prescribed in (section 206, 207 or 215(a)(3) of title 29) 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 in 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).

Under § 216(b), class actions under the ELSA can only be maintained when and if potential claimants opt in. Allen v. Marshall Field & Co., 93 F.R.D. 438, 441 (N.D. Ill. 1982). In contrast, class actions under Rule 23 bind all members of the class unless they opt out This difference between Rule 23 and § 216(b) means that Rule 23's class certification requirements do not apply to ELSA class actions. King v. General Elec. Co., 960 F.2d 617, 621 (7th Cir. 1992); Woods v. New York Life Ins. Co., 686 F.2d 578, 580 (7th Cir. 1982).

Rather, under the ELSA, the representative need only show that the plaintiffs are similarly situated. 29 U.S.C. § 216 (b). However, the FLSA and its regulations do not define similarly situated. A named plaintiff can show that the potential claimants are similarly situated "by making a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law." Realite v. Ark Rests. Corp., 7 F. Supp.2d 303, 306 (S.D.N.Y. 1998) (citations omitted).

District courts have the power to authorize notice of the action to potential plaintiffs. Woods, 686 F.2d at 580.

Defendant opposes notifying potential plaintiffs for the following reasons: (1) Plaintiff's position of Project Manager II is exempt under the FLSA, (2) Plaintiff's declaration in support of her motion contains inadmissible facts which are not based on her personal knowledge, (3) the complaint alleges no facts which establish that a ELSA violation occurred, (4) Plaintiff has failed to show that any member of the purported plaintiff class has any interest in this action, and (5) the proposed notice is defective.

Defendant argues that the Project Manager II position is exempt under the FLSA. In support of this argument, Defendant has attached the affidavit of Richard C. Homiston ("Homiston"), Defendant's Director of Human Resources.

According to the Affidavit of Richard C. Homiston, Defendant's Director of Human Resources*fn1, a Project Manager II's "primary job duties consist of non-manual work that is directly related to [Defendant's] general business operation," selling Defendant's Event Services, directing event projects from start to finish, assisting Defendant's regional and branch managers with planning and forecasting, assisting customers, assuring that customers have trained staff to maintain equipment and manage the business, and advising Defendant of its fleet positioning. (Homiston Aff. ¶ 6.) A Project Manager II must exercise discretion and independent judgment. (Id. ¶ 8.) However, a Project Manager II does not formulate management policies or participate in every aspect of Defendant's business as a whole. (Id.) Project Manager II is an "exempt" position, and employees occupying this position are paid on a salaried basis. (Id. ¶ 11.)

Defendant has not identified a specific provision of the FLSA that would exempt Plaintiff's position from the maximum hour provisions of the FLSA. Rather, Defendant relies solely on the conclusion that its internal classification of the Project Manager II position is "exempt". This is an insufficient basis to determine that the Project Manager II position is "exempt" under the FLSA. Defendant will not be prejudiced if it is determined that the Project Manager II position is "exempt" after notice has been sent to potential plaintiffs. Jackson v. New York Tel. Co., 163 F.R.D. 429, 431 (S.D.N.Y. 1995) ("[E]ven if plaintiffs' claims turn out to be meritless . . . notification at this stage, rather than after further discovery, may enable more efficient resolution of the underlying issues in this case.").

Defendant next argues that notice under § 216(b) is improper because the complaint does not allege a FLSA violation and that Plaintiff's declaration is deficient because it contains inadmissible facts*fn2. Specifically, Defendant argues that the allegations in the complaint do not meet the requirements for issuing notice to potential class members.

The complaint alleges that, throughout Plaintiff's tenure with Defendant, she worked in excess of forty hours per week and was not paid time-and-a-half for the hours worked in excess of forty hours per week. (Compl. ¶ 21, 22.) The complaint also alleges that Defendant employed others who performed the same job duties and responsibilities as Plaintiff and who were not paid time-and-a-half for hours worked in excess of forty hours per week. (Id. ¶ 23.) The complaint further alleges that "it is . . . Defendant's policy and practice [not] to pay overtime wages to employees employed in the job position of `Account Executive'. . . ." (Id. ¶ 24.)

These allegations are sufficient to allege a FLSA violation and meet the requirements for notice under § 216(b). The complaint alleges that it was Defendant's policy and practice not to pay time-and-half to employees in Plaintiff's position. Furthermore, the Homiston Affidavit actually supports the allegations in the complaint. Homiston asserts that it was Defendant's practice and policy not to pay overtime to Project Manager us but to pay them on a salaried basis because Defendant has classified such employees as "exempt" under the FLSA. (Homiston Aff. ¶ 11.) However, if such employees are not "exempt" under the FLSA, then a FLSA violation has occurred, and a class of employees who were wrongly denied overtime compensation exists. Also, it is curious that the affidavit submitted by Defendant's Director of Human Resources does not assert that all persons employed in Plaintiff's position of Project Manager II are in fact not similarly situated as Plaintiff. The Declaration filed by Plaintiff in this regard is reasonable based on firsthand knowledge in material part and is, therefore, unrebutted.

Defendant also argues that notice should not be sent to potential class members because Plaintiff has not shown that there are other similarly situated individuals who were denied overtime compensation in violation of the ELSA but who also wish to opt-in to the instant case. Defendant cites several cases in which named plaintiffs provided affidavits from potential class members before notice was authorized. See Belbis v. County of Cook, No. 01 C 6119, 2002 WL 31600048 (N.D. Ill. Nov. 13, 2002); Vazquez v. Tri-State Mgmt. Co., Inc., 2002 WL 58718 (N.D. Ill. Jan. 10, 2002); Morisky v. Public Serv. Elect. & Gas Co., 111 F. Supp.2d 493 (D.N.J. 2000); Realite v. Ark Rests. Corp., 7 F. Supp.2d at 306; Allen v. Marshall Field & Co., 93 F.R.D. 438 (ND. Ill. 1982).

However, those cases did not establish an independent requirement of proof of desire to join in the action for authorization of notice under § 216(b). Rather, in those cases, the affidavits of potential class members were used to determine whether the named plaintiff and potential class members were similarly situated under § 216(b), see Belbis, 2002 WL 31600048, at 5; Vazquez, 2002 WL 58718, at *3; Realite, 7 F. Supp.2d at 306-7; whether the numerosity requirement for class certification under Federal Rule of Civil Procedure 23 had been met, Morisky, 111 F. Supp.2d at 497 n. 6; and to determine that judicial economy would be served by notifying potential class members where other actions were about to be filed. See Allen, 93 F.R.D. at 443.

Plaintiff has adequately alleged and Defendant has conceded that Defendant has a common plan of not paying overtime wages to Project Manager IIs. Thus, Plaintiff has established that the plaintiff class is similarly situated.

Defendant argues that the proposed notice is defective because: (1) it is overly broad because it is not limited to Project Manager IIs; (2) the description of the action favors Plaintiff; and (3) it fails to notify potential class members that, if they opt-in, they will be required to participate in discovery. In her reply in support of her motion, Plaintiff states that she seeks only to notify other employees who are Project Manager IIs. (Reply Supp. Mot. Begin "Opt-In" Notice Members Pl. Class at 2 n. 1.)

Defendant also objects to the notice because the proposed notice precludes Defendant from communicating with class members. District courts have discretion to limit communication between parties and class members. Williams v. Chartwell Fin. Serv. Ltd., 204 F.3d 748, 759 (7th Cir. 2000). An order limiting Defendant's communication with class members regarding this action will cause Defendant no harm and generally promote a fair notification procedure.

The Portal-to-Portal Act provides that the statute of limitations for actions under the ELSA is two years, unless the cause of action arises out of a willful violation of the ELSA; in which case, the statute of limitations is three years. 29 U.S.C. § 255 (a). Defendant has conceded that it did not pay overtime wages to Project Manager IIs because it classifies that position as "exempt". (Homiston Aff. ¶ 11.) This concession implies willfulness on the part of the Defendant, which implies that the proper statute of limitations is three years. 29 U.S.C § 255(a).

Therefore, Plaintiff's Motion for an Order Authorizing Notice to Similarly Situated Persons Pursuant to 29 U.S.C. § 216 (b) is granted. As Plaintiff concedes, the proper class is employees who occupy the Project Manager II position who work or worked for Defendant during the past three years and who (1) worked overtime during that period and (2) did not receive time-and-a-half for hours worked in excess of forty hours. Defendant's objections to the form of the order are not meritorious.


For the reasons stated above, Plaintiff Linda Taillon's Motion for an Order Authorizing Notice to Similarly Situated Persons Pursuant to 29 U.S.C. § 216 (b) is GRANTED.

Defendant is ordered to (1) submit, within fourteen days of the date of this Memorandum Opinion and Order, the names and addresses of all potential class members and (2) refrain from any and all forms of communication with current and prospective class members concerning the merits and issues of their ELSA claims. Counsel for Plaintiff is ordered to amend Plaintiff's proposed Notice to conform to the class that has been defined in this Memorandum Opinion and Order, which shall be sent to all potential class members.

It is further ordered that Defendant's Motion to Strike Portions of Plaintiff's Declaration is DENIED.


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