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Rebecca Petersen and Tara Howarth, Individually and On Behalf of Others Similarly Situated v. Marsh Usa

December 23, 2010


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:


Rebecca Petersen and Tara Howarth have sued Mercer, Inc., Marsh USA, Inc., and corporate officers of Mercer and Marsh under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b), seeking unpaid overtime wages and other relief. For the second time, plaintiffs have moved the Court for an order conditionally certifying this case as a collective action and approving a notice to be sent to other similarly situated employees, notifying them of the pendency of the case and their right to join it as plaintiffs. For the reasons stated below, the Court grants plaintiffs' second motion for conditional certification in part.


Marsh and Mercer are subsidiaries of Marsh & McLennan Companies, Inc., a U.S.-based insurance and professional services firm. Mercer provides human resources consulting services to domestic and international clients. Plaintiffs are former Chicago-based employees in Mercer's Retirement, Risk and Finance Line of Business. Petersen served as a Senior Defined Benefit Consulting Analyst ("Consulting Analyst") with Mercer from July 2, 2007 until April 2, 2010. Howarth served as a Senior Defined Benefit Actuarial Analyst ("Actuarial Analyst") with Mercer from April 7, 2008 until March 1, 2010. Prior to March 2010, Mercer had classified both plaintiffs as "exempt" employees under the FLSA and paid them an annual salary without additional overtime pay. The FLSA provides that all non-exempt employees must be paid one and one-half times their regular rate of pay for each hour worked above forty hours per week. See 29 U.S.C. § 207(a)(1). Plaintiffs allege that they regularly worked more than forty hours per week while they were classified as exempt employees.

As of March 1, 2010, Mercer reclassified a number of positions from exempt to non-exempt status. Employees in these positions thus became eligible to receive overtime pay. Plaintiffs' positions-Consulting Analyst and Actuarial Analyst---were among those reclassified in this policy change. Plaintiffs allege that their reclassification occurred without any corresponding change in their job duties and that they were improperly classified as exempt employees prior to March 1, 2010. Plaintiffs seek compensation for the time they worked on top of the regular forty-hour work week prior to that date.

On July 13, 2010, plaintiffs filed their first motion for conditional certification of the case as a collective action. They proposed a group of notice recipients consisting of

[a]ll individuals who were employed, or are currently employed, by one or more Defendant [sic], their subsidiaries or affiliated companies, as Job Level D employees or any other similarly titled position at any time during the relevant limitations period whose position was reclassified from exempt to non-exempt on March 1, 2010.

Pls.' Mem. in Support of Mot. to Conditionally Certify at 2. Defendants opposed the motion, arguing that plaintiffs sought "a collective action of unprecedented scope and diversity." Defs.' Mem. in Opp. to Mot. to Conditionally Certify at 1. Defendants noted that plaintiffs' proposed collective action would include employees with "79 distinct job titles" working in "19 different Lines of Business and Functions." Id. Plaintiffs' proposed definition would have encompassed approximately 1,700 employees. Pls.' 2d Mot. to Conditionally Certify ("Pls.' 2d Mot.") at 2 n.1.

The Court denied plaintiffs' motion in an oral ruling on September 20, 2010. The Court found that plaintiffs failed to identify similarities between themselves and the proposed notice recipients sufficient to support conditional certification. In particular, the Court noted that plaintiffs identified only two commonalities: the alleged mass reclassification of "job level D" employees and the fact that approximately fifty of eighty reclassified job titles were "analyst" positions of some sort. Sept. 20, 2010 Tr. 3:2-17. Though these similarities were insufficient to support a collective action of the breadth sought by plaintiffs, the Court noted that "there might be some narrower grouping of people that might pass muster." Id. 4:3-4.

Plaintiffs filed the present motion on September 23, 2010. They proposed sending notice to a smaller group of current and former Mercer employees who held any of three different job titles: Consulting Analyst, Actuarial Analyst, or "Retirement Analyst [(RSC)]." Pls.' 2d Mot. at 1, 4. In an opposition brief, defendants countered that this definition would encompass "approximately 500 current and former Mercer employees," about seventy-five of whom held the "Retirement Analyst (RSC)" position and thus did not share a job title with either plaintiff. Defs.' Mem. in Opp. to Pls.' 2d Mot. ("Defs.' 2d Mem.") at 4. Plaintiffs conceded in a reply brief that they never held the title "Retirement Analyst (RSC)" and further narrowed their motion's scope by eliminating the seventy-five employees with this title from their proposed group of notice recipients. As such, plaintiffs' proposed collective action now encompasses approximately 425 Consulting Analysts and Actuarial Analysts ("putative notice recipients"). Pls.' Reply at 1 n.1.

In support of conditional certification, plaintiffs offer the following evidence: their own allegations, sworn declarations and deposition testimony; Mercer's job descriptions for the positions held by plaintiffs; a consent form and sworn declaration from one opt-in plaintiff, Asta Gurklys; evidence of Mercer's uniform reclassification of putative notice recipients to non-exempt status under the FLSA; and deposition testimony from another Mercer employee, Amy Pepin.


The FLSA allows plaintiffs to bring a collective action to recover unpaid overtime compensation on behalf of "themselves and other employees similarly situated." 29 U.S.C. § 216(b). Collective actions under the FLSA require would-be plaintiffs to opt in. Alvarez v. City of Chicago, 605 F.3d 445, 448 (7th Cir. 2010).

Congress and the Seventh Circuit have not defined the procedures courts should use in certifying a collective action. Courts in this district typically employ a two-step certification process. See Russell v. Ill. Bell Tel. Co., 575 F. Supp. 2d 930, 933 (N.D. Ill. 2008). At the first stage, a plaintiff must "show there are similarly situated employees who are potential claimants." Smallwood v. Ill. Bell Tel. Co., 710 F. Supp. 2d 746, 750 (N.D. Ill. 2010). To establish this at the first stage, "plaintiffs 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. (quoting Flores v. Lifeway Foods, Inc., 289 F. Supp. 2d ...

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