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Edward Earl v. Uti Worldwide

January 26, 2011

EDWARD EARL NICHOLSON, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
PLAINTIFF,
v.
UTI WORLDWIDE, INC. ET AL., DEFENDANTS.



The opinion of the court was delivered by: J. Phil Gilbert U.S. District Court Judge

MEMORANDUM AND ORDER

This matter comes before the Court on plaintiff Edward Earl Nicholson's motion (Doc. 44) and supplemental motion (Doc. 70) for conditional collective action certification pursuant to 29 U.S.C. § 216(b). Defendants UTi Worldwide, Inc. and UTi Integrated Logistics, Inc. (collectively "UTi") have responded to the motions (Docs. 52 & 82), and Nicholson has replied to those responses (Doc. 85).

I. Background

From November 2008 to August 2009, Nicholson worked for UTi as a forklift operator in Edwardsville, Illinois. Nicholson was an hourly worker protected by the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and the Illinois Minimum Wage Law ("IMWL"), 820 ILCS § 105/1 et seq. Nicholson alleges that during his employment, UTi required its forklift operators like him to "work before their paid shifts donning special clothing and protective gear, locating forklifts, inspecting forklifts, completing inspection documents, changing forklift batteries, logging into computer systems and applications, obtaining supplies, and driving or walking to assigned work areas." Am. Compl. ¶ 1. He claims he and other forklift operators were sometimes required to replace pallets and arrange work areas before their paid shifts began, and were required to work during unpaid lunch breaks. Id.

Nicholson filed this lawsuit in September 2009. Following the Court's dismissal of some of his claims, the following claims pled in the amended complaint remain: Count I: a claim for failure to pay overtime wages in violation of the FLSA, 29 U.S.C. § 207(a)(1);

Count II: a claim for failure to pay overtime wages in violation of the IMWL, 820 ILCS § 105/41(a);

Count III: a claim for breach of contract for failure to pay contracted wages;

Count IV: a quantum meruit claim for unpaid "gap time" (hours worked before the employee reaches the forty-hour per week overtime threshold that were not paid at the correct rate of pay); and Count V: an unjust enrichment claim for unpaid "gap time."

In his original motion, Nicholson asks for conditional collective action certification under

29 U.S.C. § 216(b) of:

All current and former hourly-paid forklift operators employed by Defendants at the Madison County, Illinois, facilities in the past three years for the FLSA claim in Count I. Nicholson submitted three affidavits from former UTi forklift operators in support of his motion.

UTi responded to Nicholson's original motion by arguing that the Court should disregard the affidavits in support of the motion, that the affidavits do not adequately support conditional collective action certification and that the putative plaintiff class is otherwise unsuitable for class treatment because individual issues predominate over class issues. Additionally, UTi objects to Nicholson's proposed form and method of distribution of the class notice, should the action be certified.

Nicholson has supplemented his motion with a request for conditional collective action certification of the following class:

All current and former hourly-paid forklift operators employed by Defendants in the United States ...


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