The opinion of the court was delivered by: Reagan, District Judge
Plaintiffs filed this putative collective action on February 2, 2007 (Doc. 2) and amended their complaint on August 14, 2007 (Doc. 43). Plaintiffs allege that Defendants unlawfully refused to pay full overtime wages in violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201. Defendants argue that the Plaintiffs fall within an exemption to the FLSA's overtime pay requirements. On April 13, 2007, Magistrate Judge Philip M. Frazier held a scheduling and discovery conference (Doc. 20). At that time, the Court entered an order limiting discovery to the collective action certification issue. This matter is now before the Court on Plaintiffs' motion for conditional certification of the proposed collective action (Doc. 79).
A. Introduction and Background
Plaintiffs were originally employed by United Industries Corp., which was acquired by Spectrum Brands, Inc. in 2005. Defendants' work involves the packaging of various chemicals, including insecticides and herbicides. Plaintiffs were employed as production supervisors within Defendants' St. Louis County, Missouri facilities. Work at these facilities is conducted in three 8-hour shifts-7 a.m. to 3 p.m.; 3 p.m. to 11 p.m.; and 11 p.m. to 7 a.m.-though Plaintiffs did not necessarily work on the same shift or production line.
Plaintiffs allege that they spent 50% or more of their time maintaining and servicing production line machinery. However, they also claim that they spent a large portion of their time (40%) working alongside the operators on the production line, where they placed chemicals into containers. The remainder of their job consisted of doing administrative work (10%).
Plaintiff Bunyan claims that he was originally compensated at an hourly rate and was given time-and-a-half for overtime work. At some point, however, Defendants instituted a Compensation Incentive Plan, which provided that compensation would be paid as a predetermined specific amount per pay period (i.e., salary). It is this plan that Plaintiffs say violated their rights under the FLSA.
Under the new plan, Plaintiffs' work responsibilities did not change. It appears that the salary under the plan was based on an 8-hour shift, though Plaintiffs did not receive overtime pay unless they worked more than 10 hours. According to Plaintiffs, this resulted in a pay decrease because they were always required to report 30 minutes prior to an 8-hour shift and remain on duty for at least 30 minutes after the shift ended. Essentially, Plaintiffs argue that Defendants consistently paid them for 8-hours of work, even though they worked 9-hour shifts or longer. Irrespective of the fact that their work weeks always lasted at least 45 hours, they allege that Defendants' compensation plan failed to compensate them for overtime.
Moreover, Plaintiffs allege that even when Defendants did pay them for overtime, the plan only permited compensation for additional time worked at the end of the shift, such that they never received credit for the 30 minutes prior to its start. Plaintiffs also claim that when overtime pay was awarded, it was improperly calculated because it did not account for retroactive raises or shift premiums.
Plaintiffs challenge this system as a violation of the FLSA, 29 U.S.C. § 207. They seek to proceed in a collective action under § 216 and request compensatory damages for all unpaid overtime, liquidated damages under the FLSA, and injunctive relief.
Plaintiffs now move this Court to conditionally certify a collective action in this case and require Defendants to send notice to all members of the putative class. Defendants argue that Plaintiffs cannot show that the proposed class members are similarly situated. On July 18, 2008, the Court held a hearing and heard argument on the underlying motion.
Having thoroughly reviewed the parties' arguments, the Court hereby DENIES Plaintiffs' motion for conditional certification as a collective action (Doc. 79).
Plaintiffs seek conditional collective action certification under 29 U.S.C. § 216(b), which provides:
An action to recover the liability [under the FLSA] may be maintained against any employer . . . 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.
Thus, whether a collective action should be certified depends on whether the employees in the proposed class are "similarly situated."
As the FLSA itself makes a collective action available to claimants, the standards and procedures provided by FEDERAL RULE OF CIVIL PROCEDURE 23, which governs class actions, are inapplicable here. For instance, putative class members in a Rule 23 proceeding remain class members until they "opt out." Under the FLSA, however, putative class members must "opt in" if they wish to participate in the action.
It is within the sound discretion of the district court as to whether or not to certify a collective action under § 216(b). See Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001).
1. Establishing the Proper Legal Standard
The level of scrutiny the Court uses to assess the certification issue varies depending on the stage of the litigation. While the Seventh Circuit has not provided a particular standard for determining when certification should be granted, the Southern District of Illinois follows the majority of district courts and typically applies an ad-hoc two-step process. Perry v. National City Mortg., Inc., Case No. 05-CV-0891, 2007 WL 1810472 (S.D. Ill. June 21, 2007). In either step, the plaintiff bears the burden of showing that the employees ...