The opinion of the court was delivered by: Joe Billy McDADE United States District Judge
This matter is before the Court on Plaintiff's Motion for Conditional Class Certification and Judicial Notice, filed on June 10, 2009. (Doc. 21). For the following reasons, the Motion is granted in part and denied in part.
On August 21, 2007, Plaintiff, Jill L. North ("North") filed a Complaint on behalf of herself and similarly situated individuals under the Fair Labor Standards Act ("FLSA") against the Board of Trustees of Illinois State University and C. Alvin Bowman, the President of Illinois State University ("ISU") (Doc. 1). Defendants' Motion to Dismiss (Doc. 5), was denied by this Court on April 3, 2008, pursuant to a Report and Recommendation by Magistrate Judge Byron Cudmore. (Docs. 8 & 9).
On April 3, 2008, North submitted an Amended Complaint, adding the nine other named Plaintiffs in this action as parties, and adding a retaliation claim under the FLSA on behalf of Plaintiff Michelle' Prinsloo.*fn1 (Doc. 10). North submitted forms consenting to join the collective action from the other nine named Plaintiffs in this action on April 4, 2008. (Doc. 11).
The instant Motion for Conditional Class Certification and Judicial Notice was filed on June 26, 2009; Plaintiffs seek conditional certification of a FLSA collective action under Count I of the Amended Complaint, which alleges that ISU violated the FLSA's overtime pay provisions, and judicially-ordered notice to potential collective action plaintiffs.*fn2 (Doc. 21). Plaintiffs' proposed collective action is defined as: "All former Illinois State University employees employed in support of the operations of Illinois State University Housing Summer Conferencing Services at any time after May 1, 2006; and who worked more than forty (40) hours in at least one week during their employment."*fn3 (Doc. 21 at 2). Defendants filed a Response to this Motion on June 26, 2009. (Doc. 22).
II. Factual Background*fn4
During the summer of 2007, North, an undergraduate student at ISU, was employed by ISU as a Conference Assistant ("CA"). The other nine named Plaintiffs were also CAs in 2007. CAs provide support when ISU hosts conferences and other events during the summer months, "assist[ing] with the day-to-day operations of the ISU residence halls, conduct[ing] administrative conference management duties, and ensur[ing] the safety and security of all guests." (Doc. 6, Ex. A: 2007 ISU Summer Conferencing Conference Assistant Contract and Work Agreement).
All CAs in the summer of 2007 entered into the 2007 ISU Summer Conferencing Conference Assistant Contract and Work Agreement with ISU ("Work Agreement"). (Doc. 6, Ex. A). This Work Agreement provides that CAs should expect to work an average of 27 hours per week on the "desk shift" and approximately 12 overnight on-call duty shifts from 11:00 P.M. to 7:00 A.M. (Doc. 6, Ex. A at 2). It also provides that CAs needed to be "[a]vailable to work June 15-17 and June 20-July 1, 2007 to support mega-conference operations." (Doc. 6, Ex. A at 2). CAs received a $1,974.00 stipend, as well as a room and board package for the summer. (Doc. 6, Ex. A at 2). The parties agree that the value of the stipend and the room and board package was $4,313.00. Given the combined compensation package, Plaintiffs calculate the weekly wage for the 13 week summer work period at $386.00. Plaintiffs reason that, because the Work Agreement provided for 447 total hours, the hourly wage under the Work Agreement was $9.65.*fn5
Around May 28, 2007, a new policy was announced, effective June 3, 2007, under which CAs' hours were changed: overnight on-call duty shifts were increased from 8 to 15 hours in length.*fn6 In exchange for this change, ISU increased the total compensation package for CAs by $150.00. Plaintiffs calculate that the increased length of the overnight shifts added a total of 77 hours to the CAs' workload, and that the $150.00 salary increase was not sufficient to even meet the minimum wage for those additional hours. In addition, Plaintiffs allege that they and the other 2007 CAs each worked in excess of 40 hours per week, and were not compensated at the required time-and-a-half rate for this overtime work. Finally, Plaintiffs allege that the 2007 conference support employees other than CAs, and the conference support employees of ISU in other years, worked under similar terms of employment, and were not paid for overtime work.
Employees alleging that they have been denied required overtime compensation may bring a suit on their own behalf and on behalf of "other employees similarly situated," in a "collective action" under 29 U.S.C. § 216(b). Unlike Rule 23 class actions, plaintiffs to a FLSA collective action must "opt-in" to be parties to the suit, and they are not bound by the court's determination if they do not opt-in. Woods v. New York Life Ins. Co., 686 F.2d 578, 580 (7th Cir. 1982).*fn7 In addition, unlike Rule 23, § 216(b) does not provide for court-ordered notice. However, the Supreme Court has held that a court may order notice to potential plaintiffs in "appropriate cases." Hoffman-LaRoche, Inc. v. Sperling, et al., 493 U.S. 165, 169 (1989). The Seventh Circuit has held that, once the suit is filed, plaintiffs should consult with defense counsel before contacting other potential plaintiffs, and that the district court has the power to manage the notice to other plaintiffs. Woods, 686 F.2d at 580.
The FLSA does not define "similarly situated," and how a district court should decide when a case is "appropriate" for court-ordered notice has not yet been determined by the Seventh Circuit. However, the majority of courts, including the district courts of this Circuit, have adopted a two-step approach to § 216(b) collective actions. Biddings v. Lake County, 09-cv-38, 2009 WL 2175584, *2 (N.D. Ind. July 15, 2009); Russell v. Illinois Bell Telephone Co., 575 F.Supp.2d 930, 933 (N.D. Ill. 2008); DeKeyser v. Thyssenkrupp Waupaca, Inc., 08-c-488, 2008 WL 5263750, *2 (E.D. Wis. Dec. 18, 2008); Craft v. Ray's, LLC, 1:08:cv-00627-RLY-JMS, 2008 WL 4810546, *1 (S.D. Ind. Oct. 29, 2008); Bunyan v. Spectrum Brands, Inc., 07-cv-0089-MJR, 2008 WL 2959932, *2 (S.D. Ill. July 31, 2008); Austin v. CUNA Mut. Ins. Soc'y, 232 F.R.D. 601, 605 (W.D.Wisc.2006). The Central ...