The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION AND ORDER
Plaintiff Darrick Hundt brought this action against DirectSat USA, LLC ("DirectSat"), based on DirectSat's alleged failure to pay Hundt and other similarly situated employees overtime wages in violation of the Fair Labor Standards Act (the "FLSA"), 29 U.S.C. § 201, et seq., and the Illinois Minimum Wage Act (the "IMWA"), 815 Ill. Comp. Stat. 5/2-209. This matter comes before the court on Hundt's motion to "send notice to additional members of the plaintiff class." (Doc. No. 80.) For the reasons set forth below, Hundt's motion is granted.
Hundt originally filed this lawsuit against DirectSat on behalf of himself and other similarly situated "warehouse managers." (Compl., Doc. No. 1.) According to the complaint, DirectSat classified Hundt and other "warehouse managers" as "exempt from overtime pay[,] even though . . . the duties test for an overtime exemption was not met." (Id. ¶¶ 9, 13, 15, 19.) As a result, Hundt and the other warehouse managers were allegedly deprived of overtime pay, in violation of the FLSA and IMWA. (Id. ¶¶ 8, 19-20.)
Pursuant to an agreement between the parties, the court entered an order allowing Hundt to send opt-in notices to individuals on a list of warehouse managers provided by DirectSat.(See Order, Feb. 23, 2009, Doc. No. 24.) Donald Caswell was one of the prospective plaintiffs who returned an opt-in notice. (Notice of Consent, Doc. No. 30.) In the notice, Caswell claimed to have been "employed by DirectSat as a warehouse manager within the prior three (3) years." (Id.) DirectSat moved to strike Caswell's notice, arguing that "[a]lthough Mr. Caswell has worked for DirectSat, he was never employed as a warehouse manager." (Mot. to Strike ¶ 7, Doc. No. 35.) The court denied DirectSat's motion, holding that:
The court's [February 23, 2009] order requiring Defendant to produce a list of warehouse managers for notice purposes did not state or imply that the final plaintiff class would be limited based upon Defendant's characterization of its employees' positions. To the contrary, under FLSA job titles are insufficient to create or defeat a claimed exemption from the overtime pay rules. Accordingly, after discovery has closed the court may need to look past Defendant's job titles to see whether or not opt-in plaintiffs are similarly situated to each other. (Order, July 2, 2009, Doc. No. 54.)
Hundt subsequently moved for leave to file an amended complaint, which the court granted over DirectSat's objection. (See Order, May 17, 2010, Doc. No. 102.) The proposed amended complaint sought, among other things, to expand the putative class to include "warehouse supervisors and other similarly-titled positions."*fn1 (Proposed Am. Compl. ¶ 5, Ex. A to Mot. for Leave to Amend., Doc. No. 60.) A final version of the proposed complaint has yet to be filed, and DirectSat is the only defendant currently before the court.
Section 216(b) of the FLSA permits plaintiffs to bring a "collective action" against an employer for unpaid overtime compensation on behalf of him or herself and "other employees similarly situated." 29 U.S.C. § 216(b). Neither the FLSA nor the Seventh Circuit has set forth criteria for determining whether employees are "similarly situated." AON Corp. Wage & Hour Employment Practices Litig., No. 08 C 5802, 2010 WL 1433314, at *5 (N.D. Ill. Apr. 8, 2010). Nonetheless, courts in this district and around the country have settled on a two-step procedure for dealing with collective actions under the FLSA. See id. (citing Anderson v. Cagle's Inc., 488 F.3d 945, 951-54 (11th Cir. 2007); Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102-03 (10th Cir. 2001)).
"At the first stage, the court leniently reviews pleadings and affidavits to determine whether there are allegations sufficient for the court to find that the representative plaintiff and putative class members are similarly situated." Id. In order to satisfy this burden, a plaintiff need only make 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." Id. "This determination usually results in a 'conditional certification' of the representative class participants," after which the court may "order that notice be provided to the potential participants." Shiner, 2009 WL 4884166, at *2. "Plaintiff need not show that potential class members performed identical duties to meet this standard, and conditional certification may be appropriate even if differences exist between their job titles, functions, or pay." Olmstead v. Residential Plus Mortgage Corp., No. 08 C 142, 08 C 419, 2008 WL 5157973, at *3 (N.D. Ill. Dec. 9, 2008). Although the inquiry is "undemanding," Shiner v. Select Comfort Corp., No. 09 C 2630, 2009 WL 4884166, at *3 (N.D. Ill. Dec. 9, 2009), "the court is under no obligation, as it would be on a motion to dismiss, to accept the plaintiff's allegations as true," Howard v. Securitas Sec. Servs., USA Inc., No. 08 C 2746, 2009 WL 140126, at *5 (N.D. Ill. Jan. 20, 2009). "Rather, the court evaluates the record before it, including [the defendant's] oppositional affidavits, to determine whether the plaintiffs are similarly situated to other putative class members." Id.
"The second stage occurs later in the litigation, after all or a significant portion of discovery has been completed and the defendant has filed a motion for decertification." AON Corp., 2010 WL 1433314, at *5. At the second stage, the court will "employ a much stricter standard in making a final determination on the similarly situated question considering a number of factors including the disparate factual and employment settings of the individual plaintiffs and the defenses available to defendants that are individual to each plaintiff." Id.
As a threshold matter, the Parties agree that Hundt should be permitted to send opt-in notices to five "warehouse managers" that DirectSat failed previously to disclose.*fn2
(See Resp. at 4-5, Doc. No. 91.). The parties also agree that the statute of limitations should be tolled with respect to those five warehouse managers from the date of the original notice. (See id.) The parties disagree, however, as to whether the putative class should be conditionally certified to include "warehouse supervisors or other similar employees that were treated as exempt from overtime." (Mot. ¶ 8.) DirectSat argues that "there are significant differences among the warehouse managers and supervisors that render them not similarly-situated," and "[Hundt] has failed to support his . . . allegations with . . . sufficient evidence that demonstrates the existence of a single common decision, policy or plan that violates the FLSA." (Resp. at 13.) Hundt argues that "warehouse supervisors" and various other warehouse employees were "similarly situated to the ...