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Marshall v. Amsted Industries

June 16, 2010

CHESTER MARSHALL AND RICHARD WHITBY, INDIVIDUALLY AND ON BEHALF OF A CLASS OF OTHER SIMILARLY SITUATED INDIVIDUALS, PLAINTIFFS,
v.
AMSTED INDUSTRIES, INC. AND AMSTED RAIL COMPANY, INC., DEFENDANTS.



The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM AND ORDER

A. Introduction and Overview of Case

Five months ago, Chester Marshall and Richard Whitby filed suit in this Court alleging that their employer (the owner-operator of a steel foundry and manufacturing facility in Granite City, Illinois) willfully failed to pay wages and overtime compensation and failed to keep accurate payroll records, all in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b).

The complaint actually names two Defendants -- Amsted Industries, Incorporated and Amsted Rail Company, Inc. -- whom Plaintiffs allege form a single integrated enterprise and maintain a joint-employer relationship. Without comment on the merits of that allegation, the Court refers to Defendants collectively as "Amsted" herein. Amsted manufactures freight cars and locomotive components at the Granite City facility.

Marshall has worked at Amsted since August 2006 as an hourly-paid leadman, instructor and supervisor. Whitby has worked at Amsted since January 2004 as an hourly-paid chipper. Marshall and Whitby ("Plaintiffs") submitted with the original complaint herein their consents to proceed as FLSA party plaintiffs. (The complaint does not mention this, but Amsted's recent pleadings indicate that Plaintiffs both are "currently laid off" and "represented by the Steelworkers," see Doc. 74-1, p. 3).

The undersigned Judge enjoys subject matter jurisdiction under the federal question statute, 28 U.S.C. § 1331, via the FLSA claims. A second count, based on Illinois law, was dismissed in a May 10, 2010 Order which directed Plaintiffs to file an amended complaint by June 7th containing only the FLSA claim (see Doc. 72). Plaintiffs did so (see Doc. 80). The amended complaint seeks compensatory damages, liquidated damages, attorneys' fees, costs and interest.

Attached to the amended complaint, in compliance with the undersigned Judge's May 10th Order, is a list of the 262 employees who -- to date -- have consented to join this action (in addition to Marshall and Whitby). Each of these employees works (or during the period at issue herein worked) at Amsted's Granite City plant, within this Judicial District. The question now before this Court is whether to conditionally certify these claims as a collective action. For the reasons thoroughly discussed below, the undersigned Judge answers that question affirmatively.

The FLSA authorizes employees to present their claims through a "collective action" filed on behalf of themselves and other similarly situated workers. Alvarez v. City of Chicago, -- F.3d --, 2010 WL 2011500 (7th Cir. May 21, 2010), citing 29 U.S.C. § 216(b). A FLSA collection action differs in several key respects from a typical class action under Federal Rule of Civil Procedure 23. Significantly, "plaintiffs who wish to be included in a collective action must affirmatively opt-in to the suit by filing a written consent with the court, while the typical class action includes all potential plaintiffs that meet the class definition and do not opt-out" of the suit. Alvarez, 2010 WL 2011500, * 2.

The opt-in requirement is strictly enforced. See, e.g., Harkins v. Riverboat Services, Inc., 385 F.3d 1099, 1101 (7th Cir. 2004)("The statute is unambiguous: If you haven't given your written consent to join the suit, or if you have but it hasn't been filed with the court, you're not a party."). To the undersigned Judge's knowledge, 264 total plaintiffs have opted into this action via written consents.

Now before the Court, fully briefed, is Plaintiffs' April 7, 2010 motion seeking conditional class certification. Plaintiffs ask this Court to (1) conditionally certify the case as an FLSA collective action, (2) authorize Plaintiffs to send notice to all current and former hourly employees of Amsted's Granite City plant who worked any time during the past three years (excluding certain categories of workers), (3) order Amsted to provide a computer-readable data file with the name, last know address, employment dates, and job title for each such employee, and (4) order Amsted to post conspicuous notice of this case in the break rooms of the plant.

B. Analysis of Pending Motion

Plaintiffs allege that Amsted (who currently employs about 320 hourly employees at its Granite City facility) has implemented a company-wide policy and practice to pay workers based on their scheduled shifts instead of the hours they actually worked. According to Plaintiffs, when Amsted hourly employees perform work above and beyond their scheduled shift, they are not compensated for their overtime hours, which runs afoul of the FLSA.

The FLSA, 29 U.S.C. § 207(a)(1), provides that no employer shall employ any employee who is engaged in the production of goods for commerce "for a workweek longer than forty hours, unless such employee receives compensation" for the overtime hours "at a rate not less than one and one-half times the regular rate at which he is employed." Stated another way, workers covered by the FLSA "must be paid at least one and one-half the amount of their regular wages for work beyond forty hours per week or eight hours per day." Demos v. City of Indianapolis, 302 F.3d 698, 701 (7th Cir. 2002). Congress enacted the FLSA to "protect all covered workers from substandard wages and oppressive working hours." Parth v. Pomona Valley Hosp. Medical Center, 584 F.3d 794, 798 (9th Cir. 2009), quoting Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 379 (1981).

In the case at bar, Plaintiffs assert that Amsted violates this mandate through a company policy and practice requiring hourly workers - before the beginning of their paid shifts -- to obtain protective equipment, tools and supplies, put on the protective gear (such as fire-retardant pants, protective jackets, helmets, goggles, gloves, boots and aprons), service their tools and equipment, and clean their work areas. Plaintiffs further assert that Amsted requires them -- after the end of their paid shifts -- to shut down machinery, store tools, shovel sand, remove their protective clothing, and prepare work areas for the following shift or the next day.

Allegedly, all this pre- and post-shift work (including the donning and doffing of personal protective equipment or "PPE") occurs without compensation to the hourly employees. Plaintiffs contend that this policy and practice contravenes the FLSA*fn1 and produces ...


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