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Jones v. Furniture Bargains

October 9, 2009


The opinion of the court was delivered by: Mag. Judge Michael T. Mason

Judge Wayne R. Andersen


Michael T. Mason, United States Magistrate Judge: Before the Court is Plaintiffs Barry Jones and Tamara Harris' (collectively "Plaintiffs") motion to approve sending notice of the right to opt in [19] and motion to compel [33]. Specifically, Plaintiffs request an order allowing them to send notice of the right to opt in to this case to all similarly situated people, approval of the form of the notice to be sent, and an order compelling Defendant Furniture Bargains, LLC ("Defendant" or "Furniture Bargains") to supplement its responses to written discovery to include information as to all ten of its stores. This matter was referred to this Court by Judge Andersen in accordance with 28 U.S.C. § 636(b)(1)(A) and Local Rule 72.1. For the following reasons, the Court grants Plaintiffs' motion to approve sending notice to opt in [19] and Plaintiffs' motion to compel [33].


On February 19, 2009, the named Plaintiffs sued Furniture Bargains on behalf of themselves and others similarly situated for violations of the Fair Labor Standards Act, 29 U.S.C. §201, et seq. (the "FLSA" claim) and the Illinois Minimum Wage Law, 820 ILCS 105/1, et seq. (the "IMWL" claim). Defendant is a company that sells furniture, employing furniture salespersons. Plaintiffs, one current and one past employee, seek to recover unpaid minimum wage and overtime owed to them and fellow furniture salespersons from Furniture Bargains. More specifically, Plaintiffs allege that the majority of the furniture salespersons at Furniture Bargains are not paid the federally mandated minimum wage of $6.55 an hour during each individual work week. (Complaint, ¶ 15.) In their Complaint, Plaintiffs contend that the majority of the furniture salespersons employed by Furniture Bargains were paid $200 per week for forty-hour or longer work weeks, the equivalent of $5.00 or less per hour. (Complaint, ¶ 16.) Furniture Bargains denies these allegations.

Plaintiff Barry Jones ("Jones") was hired on September 2, 2008 as a furniture salesperson for Furniture Bargains, and was terminated on February 12, 2009. Plaintiff Tamara Harris ("Harris") was hired as a furniture salesperson on October 23, 2008, and continues to work for Furniture Bargains in that capacity. Furniture Bargains operates ten stores in Illinois and Indiana. Plaintiff Jones briefly worked in two of the Illinois stores, Calumet City and Homewood. Plaintiff Harris has worked, and continues to work, at the Calumet City location. In the complaint, Plaintiffs contend that other employees are similarly situated. (Complaint, ¶20-21, 30.)

Now, Plaintiffs seek leave of Court to send notice to all similarly situated people of their right to join this action. In a related motion, Plaintiffs seek an order compelling Defendant to produce the requested documents and to supplement its interrogatory answers to include information for all ten of its stores in order to determine other similarly situated employees.


An FLSA suit on behalf of similarly situated employees is referred to as a "collective action." Heckler v. DK Funding, LLC, 502 F.Supp 2d 777, 779 (N.D. Ill. 2007). An FLSA collective action is similar to a class action under the Federal Rules of Civil Procedure in that "the judicial system benefits by efficient resolution in one proceeding of common issues of law and fact arising from the same alleged discriminatory activity." Hoffman-LaRoche v. Sperling, 493 U.S. 165, 170 (1989)(interpreting opt-in provision in ADEA that incorporates Section 16(b), as amended 29 U.S.C §216(b)). However, the opt in requirement of Section 216(b) of the FLSA preempts the class formation procedure of "opting out" under Federal Rule of Civil Procedure 23, and the distinction affects the notice that must be given to potential class members based on due process considerations. 29 U.S.C. § 216, Flores v. Lifeway Food, Inc., 289 F.Supp.2d 1042, 1044 (N.D.Ill. 2003). It is noted that despite the differences between a class action and a collective action, members of the collective action are also referred to as a "class."

Under Section 216(b), similarly situated individuals are allowed to become parties to a collective action. 29 U.S.C §216(b)). However, "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." Hoffman-LaRoche, 493 U.S. at 168. Neither the FLSA nor the regulations promulgated thereunder define the term "similarly situated." Mielke v. Laidlaw Transit, Inc., 313 F.Supp.2d 759, 762 (N.D.Ill. 2004). Therefore, courts have developed various methodologies and criteria for determining whether an FLSA lawsuit should proceed as a collective action. Jirak v. Abbott Labs., Inc., 566 F.Supp.2d 845, 847 (N.D.Ill., 2008). The majority of courts, including this Court, have employed a two-step method for determining whether an FLSA lawsuit should proceed as a collective action. Id.

Under step one of the collective action test, Plaintiffs only need to make a minimal showing that potential members of the class are similarly situated. Mielke, 313 F.Supp.2d at 762. This determination is made using a "lenient interpretation" of the term "similarly situated." Id. "[A] court requires nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan." Thiessen v. General Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001). If the plaintiff can make this minimal showing, the class is conditionally certified and notice is sent to potential class members, giving them an opportunity to opt in. Heckler, 502 F.Supp.2d at 779; Mielke, 313 F.Supp.2d at 762.

This opinion does not consider the second step and does not reach the issue of class certification under the FLSA. The "similarly-situated" determination is only being made for the limited purpose of determining whether notice is appropriate; it is not a final determination of the issue. See Jirak, 566 F.Supp.2d at 847. Specifically, after the potential class members receive notice and opt in to the case, and after merits discovery is concluded on their claims, the courts typically make a second "similarly situated" determination - at the request of the defendant, based on a full record - to determine whether class members are sufficiently similar such that it is appropriate to allow the case to proceed to trial on a collective basis. Id.

If this Court finds that Plaintiffs meet the minimal showing that others in the potential class are similarly situated under the first step, then we consider the method of the notice process. This Court has discretionary authority over the notice process. Gambo v. Lucent Technologies, Inc., 2005 WL 3542485, *3 (N.D.Ill., Dec. 22, 2005).

As to Plaintiffs' motion to compel, the Federal Rules of Civil Procedure allow broad discovery. Fed. R. Civ. P. 26(b)(1). Rule 26(b)(1) states that the "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party ... [and is of] discoverable matter." Id. Relevant information encompasses "any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Murata Mfg. Co. v. Bel Fuse, Inc., 422 F.Supp.2d 934, 945 (N.D.Ill.2006) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)). The information sought "need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). Even if relevant, discovery will not be allowed if the requesting party fails to show the need for the information, or if compliance with a request is unduly burdensome or oppressive, or ...

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