The opinion of the court was delivered by: Judge Joan H. Lefkow
Plaintiffs, eleven current or former Wells Fargo credit managers employed in Illinois and Indiana, filed a motion for approval of judicially supervised notice under 29 U.S.C. § 216(b) of a collective action against Wells Fargo for alleged failure to properly pay Wells Fargo credit managers in Illinois and Indiana overtime as required by the Fair Labor Standards Act ("FLSA"). For the reasons stated below, plaintiffs' motion [#40] is granted.
The FLSA expressly provides that an employee may bring a collective action on "behalf of himself . . . and other employees similarly situated" to recover unpaid overtime compensation.
29 U.S.C. § 216(b); see also Riddle v. Nat'l Sec. Agency, Inc., No. 05 C 5880, 2007 WL 2746597, at *5 (N.D. Ill. Sept. 13, 2007). A prospective member of the collective action may "opt-in" by filing a written consent form in the court where the action is brought; a person who does not opt-in is not part of the FLSA collective action and is not bound by the court's decision.
Gambo v. Lucent Techs., Inc., No. 05 C 3701, 2005 WL 3542485, at *3 (N.D. Ill. Dec. 22, 2005).
Although a plaintiff in an FLSA collective action is not required to seek leave of the court prior to issuing notice of the lawsuit to prospective members, Heitmann v. City of Chicago, No. 04 C 3304, 2004 WL 1718420, at *2 (N.D. Ill. July 30, 2004), district courts in this district have regularly exercised discretionary authority over the notice process. Gambo, 2005 WL 3542485, at *3. The Seventh Circuit has determined that a district court may not prohibit a plaintiff from sending notice altogether. Id. (citing Woods v. New York Life Ins. Co., 686 F.2d 578, 580 (7th Cir. 1982)). Beyond that limitation, the Court of Appeals has not provided guidance on how a district court should exercise its discretion in the notice process under 29 U.S.C. § 216(b). Id.
A number of courts in this district have used a two-step method to determine whether a plaintiff is "similarly situated." See, e.g., id.; Persin v. CareerBuilder, LLC, No. 05 C 2347, 2005 WL 3159684, at *2 (N.D. Ill. Nov. 23, 2005). At the first step, "[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." Flores v. Lifeway Foods, Inc., 289 F. Supp. 2d 1042, 1045 (N.D. Ill. 2003) (citing Taillon v. Kohler Rental Power, Inc., No. 02 C 8882, 2003 WL 2006593, at *1 (N.D. Ill. Apr. 29, 2003)) (internal quotation marks omitted). "Once such a 'modest factual showing' has been made, a court may, in its discretion, order that notice be provided to putative collective action plaintiffs. The second step consists of the court determining whether the class should be restricted based on the 'similarly situated' requirement after discovery is complete."
Id. (citing Belbis v. County of Cook, No. 01 C 6119, 2002 WL 31600048, at *4 (N.D. Ill. Nov. 18, 2002)) (internal quotation marks omitted).
I. Conditional Certification
At this stage, the court need only consider whether the plaintiffs have made a "modest factual showing" sufficient for a collective action to be conditionally certified and a court-approved notice to be provided to potential collective action plaintiffs. Courts have interpreted the "similarly situated" requirement of this first step leniently. See Jones v. Furniture Bargains, LLC, No. 09 C 1070, 2009 WL 3260004, at *2 (N.D. Ill. Oct. 9, 2009) (citing Mielke v. Laidlaw Transit, Inc., 313 F. Supp. 2d 759, 762 (N.D. Ill. 2004)). "'[A] court requires nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan."' Id. (citing Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001)). A "modest factual showing," however, cannot be founded solely on allegations in the complaint; some factual support must be provided, such as in the form of affidavits, declarations, deposition testimony, or other documents. Molina v. First Line Solutions LLC, 566 F. Supp. 2d 770, 786 (N.D. Ill. 2007) ("Unless defendant admits in its answer or briefs that other similarly situated employees exist, plaintiffs cannot rely on their allegations alone to make the required modest factual showing. Plaintiffs need not provide conclusive support, but they must provide an affidavit, declaration, or other support beyond allegations in order to make a minimal showing of other similarly situated employees subjected to a common policy.").
Plaintiffs argue that conditional certification is appropriate because all of the individuals to whom they seek to provide notice of the action have the same job duties and were subject to the same policy and practice of not paying credit managers for all of their hours worked. As support, plaintiffs submitted affidavits of five named plaintiffs with their motion. The affidavits contain substantially similar statements that, although required to work more than 40 hours a week, they were required to log only 40 hours a week and so were not compensated for additional time worked (1) pre-shift, (2) during lunch, (3) after 6:00 p.m. on weekdays, and (4) on Saturdays. See, e.g., Anyere Decl. ¶¶ 8--15, attached as Pls.' Ex. 1. All five also state that all credit managers they worked with were "subject to the same terms and conditions regarding working hours and overtime." Id. ¶ 27.*fn1
Wells Fargo challenges whether plaintiffs have made a sufficient showing that there is a common policy or plan, arguing that the five declarations are directly contradicted by plaintiffs' own self-reported time records that show that plaintiffs regularly were paid overtime. It also argues that, even if the affidavits were true, plaintiffs have not identified a common policy or practice extending beyond their individual supervisors and that conditional certification is inappropriate as individualized inquiries predominate. Finally, Wells Fargo maintains that the class is too broad, as there is no basis for sending notice to Indiana credit managers or those in Illinois outside of ...