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James Blakes, et al., For Themselves and On Behalf of Similarly v. Illinois Bell Telephone Company

June 15, 2011

JAMES BLAKES, ET AL., FOR THEMSELVES AND ON BEHALF OF SIMILARLY SITUATED OTHERS, PLAINTIFFS,
v.
ILLINOIS BELL TELEPHONE COMPANY, D/B/A AT&T ILLINOIS,
DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Young B. Kim

MEMORANDUM OPINION and ORDER

Plaintiffs James Blakes, Steven Clark, Herman Deckys, Bradley Hunt, Phillipe Porter, Ernest Roberts, Jr., and Larry Williams ("Plaintiffs") are currently or were formerly employed by Illinois Bell Telephone Company ("AT&T Illinois") as cable splicers. Plaintiffs have sued AT&T Illinois under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq., and the Illinois Minimum Wage Law, 820 ILCS 105/1 et seq., alleging that it failed to compensate them for work they performed after the end of their shifts and during their lunch breaks. Plaintiffs seek to pursue their FLSA claims as a collective action, and accordingly, they have filed the current Motion in Support of Judicially Supervised Notice Under 29 U.S.C. § 216(b). For the following reasons, the motion is granted in part and denied in part:

Background

AT&T Illinois is one of the largest providers of local telephone service in Illinois. It employs thousands of cable splicers whose job it is to install, maintain, and repair AT&T Illinois's vast network of fiber optics, cable, and telephone services. According to Plaintiffs, cable splicers typically begin their day at one of AT&T's garages, where they are assigned their job for the day. Once they have their assignment, they drive to their assigned work site where they often work with exposed wiring and open manholes. While present at the job site cable splicers are expected to keep the site secure to protect their own safety and that of the public. Cable splicers work an eight-and-a-half-hour work day, typically from 7:00 a.m. to 3:30 p.m., with 30 minutes designated as an unpaid lunch break. Plaintiffs claim that they are paid on an hourly basis and that they are entitled to overtime pay for working in excess of 40 hours per week.

Plaintiffs' FLSA claims spring from their assertions that AT&T Illinois requires cable splicers to include a 30-minute lunch break on their daily time sheets, regardless of whether they took a lunch break. They assert that they often must drive from site to site during the work day, and that those travel obligations coupled with the requirement that they must maintain a safe work site mean they frequently are not able to take an uninterrupted lunch break. Plaintiffs also claim that AT&T Illinois requires them to complete their time sheets back at the garage at the end of a shift, but does not have enough computers at the garages to allow everyone to clock out before their shift ends. Plaintiffs assert that the computer shortage routinely prevents them from clocking-out on time, but AT&T Illinois does not pay them for completing their time sheets after the end of their shift. According to Plaintiffs, overtime must be pre-approved by a supervisor and AT&T Illinois routinely disciplines cable splicers who seek overtime compensation that has not been pre-approved. As a result, Plaintiffs claim that cable splicers have been intimidated into not asking for overtime pay due to them.

Plaintiffs seek certification of a collective action under the FLSA so that they may represent other cable splicers who allegedly were denied overtime compensation. They assert that there are up to 1,500 cable splicers who have been subjected to the same allegedly unlawful compensation practices. In each of their declarations, Plaintiffs assert that, "[f]rom talking with people I know who worked at [AT&T Illinois], the pay practices described above are consistent for all similarly situated persons" employed by Illinois AT&T and based out of their garages. (See, e.g., R. 25-2, Deckys Decl. ¶ 37.) Accordingly, they seek to have this court authorize the mailing of a proposed notice of this lawsuit "to all persons currently or formerly employed as Cable Splicers by the Defendant from January 17, 2008, through the present." (R. 25-1, Pls.' Mem. at 18.) The parties have consented to the jurisdiction of this court. See 28 U.S.C. § 636(c).

Analysis

Section 216(b) of the FLSA authorizes plaintiffs to bring a collective action against an employer to recover unpaid overtime compensation for themselves and on behalf of "other employees similarly situated." 29 U.S.C. § 216(b); Rottman v. Old Second Bancorp, Inc., 735 F.Supp.2d 988, 990 (N.D. Ill. 2010). Although a collective action resembles a class action, "[t]he principle difference is that 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." Alvarez v. City of Chicago, 605 F.3d 445, 448 (7th Cir. 2010). This court follows a two-step approach to determine whether potential class members are "similarly situated," Rottman, 735 F.Supp.2d at 990, a term which this court interprets leniently, Jirak v. Abbott Labs., Inc., 566 F.Supp.2d 845, 848 (N.D. Ill. 2008). First, the plaintiffs must 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." Flores v. Lifeway Foods, Inc., 289 F.Supp.2d 1042, 1045 (N.D. Ill. 2003) (quoting Tallion v. Kahler Rental Power, Inc., No. 02 CV 8882, 2003 WL 2006593, at *1 (N.D. Ill. April 29, 2003)). Once the plaintiffs meet this burden, the court may conditionally certify the class and authorize the plaintiffs to send notice of the case to the similarly situated plaintiffs, who then may opt-in to the collective action. See Heckler v. DK Funding, LLC, 502 F.Supp.2d 777, 779 (N.D. Ill. 2007). At the second stage, the parties typically engage in fact discovery, at the end of which the defendant may ask the court to de-certify the class if it can show that there is insufficient similarity to allow the named and opt-in plaintiffs to proceed with their claims on a collective basis. Russell v. Illinois Bell Tel. Co., 575 F.Supp.2d 930, 933 (N.D. Ill. 2008). "If the Court determines that such similarities do not exist, it may revoke the conditional certification." Heckler, 502 F.Supp.2d at 779.

AT&T Illinois raises several objections to Plaintiffs' motion for judicially supervised notice. First, it argues that Plaintiffs have not shown that they are similarly situated to other potential class members because they have not pointed to a common policy or plan that is unlawful. It also argues-citing its own declarations and an expert report submitted in rebuttal to Plaintiffs' declarations-that Plaintiffs' claims require detailed individual analyses which render inappropriate even pre-conditional certification of the collective action. The parties also disagree over related points, such as whether the statute of limitations should be tolled with respect to potential opt-in plaintiffs and whether Plaintiffs' proposed notice is fair and accurate.

This court finds that Plaintiffs have made the modest showing of similarity required to justify sending judicial notice of this lawsuit to potential class members. Under the lenient review which the allegations and declarations enjoy at this stage, Plaintiffs have presented adequate evidence that the job duties of cable splicers are consistent throughout the eleven garages where they have worked, collectively, and that those similarities extend to other garages in AT&T Illinois's network. See Persin v. Careerbuilder, LLC, No. 05 CV 2347, 2005 WL 3159684, at *1, *4 (N.D. Ill. Nov. 23, 2005) (noting sufficiency of showing that potential plaintiffs "shared some fundamental employment characteristics that extend beyond job titles"). They have also presented adequate evidence that AT&T Illinois maintains an across-the-board unwritten policy that results in cable splicers working off-the-clock.

Plaintiffs' strongest point on this front is their assertion that they are required to maintain the safety of their work site throughout their presence at the assigned location, and that this requirement routinely forces them to work through their lunch break. As they point out, the Second Circuit has implicitly approved collective treatment of a similar claim when it held that an employer's requirement that a class of workers stay on site and maintain the security of their job location during their lunch hour violates the FLSA. See Reich v. Southern New England Telecomms. Corp., 121 F.3d 58, 65 (2d Cir. 1997). In Reich, the court noted that even though workers were given time to eat during the day, their employer's requirement that they remain at the site and maintain its security made their lunch breaks compensable, because "in their absence, the company would have to pay others to perform those same services." Id. Although here the potential class members travel from site to site, they have shown that AT&T Illinois's cable splicers are required to maintain the security of a job site throughout their presence, which frequently requires them to work through their lunch break. (See, e.g., R. 25-2, Clark Decl. ¶ 24.) At this stage, that is sufficient to make a modest showing that cable splicers are subject to a common unlawful policy. See Howard v. Securitas Sec. Servs., USA Inc., No. 08 CV 2746, 2009 WL 140126, at *2 (N.D. Ill. Jan. 20, 2009).

On shakier ground, but not so tremulous as to preclude pre-conditional certification, is Plaintiffs' claim that cable splicers are similarly situated because their travel from work site to work site precludes them from taking a lunch break. Claims of lunch-break violations that fall outside the category described in Reich appear to be somewhat controversial. For example, in Jonites v. Exelon Corporation, 522 F.3d 721, 725 (7th Cir. 2008), the Seventh Circuit characterized a class of employees with unpaid lunch-break claims as "hopelessly heterogeneous." But the court described the Jonites class as a "special case," where the plaintiffs sought overtime pay for their lunch breaks even though only some of the class members sometimes worked at lunch, and even though the class included employees who worked the night shift. Id. at 725-26.

After the Jonites decision, courts in this district have continued to allow preconditional certification of collective actions involving claims of unpaid lunch breaks where named plaintiffs submit substantially similar statements that they were required to work during lunch without logging the time. See, e.g., Anyere v. Wells Fargo, Co., Inc., No. 09 CV 2769, 2010 WL 1542180, at *2 (N.D. Ill. April 12, 2010); Russell, 575 F.Supp.2d at 935. Even at the more stringent second-stage review, common questions regarding an employer's policies have been found to predominate where some but not all of the plaintiffs in an opt-in class claim to have performed work during their lunch break. See Russell v. Illinois Bell Tel. Co., Inc., 721 F.Supp.2d 804, 812-13 (N.D. Ill. 2010). In Russell, not all of the plaintiffs claimed to have worked through lunch, but the court found the class suited to collective action treatment based on a class-wide claim that the employer's log-in requirements and rules regarding the completion of customer-service related tasks applied across the board. Id. at 813. Individualized questions regarding whether the policy required a given employee to work into his or her lunch break or before or after his or her shift did not justify decertification. Id. Here, Plaintiffs have submitted adequate evidence that all cable splicers often are required to travel from job site to job site during the day, and that this requirement prevents them from breaking for lunch. (R. 25-2, Clark Decl. ¶ 24.) That evidence is sufficient to justify issuing notice of the uncompensated lunch-break claim.

Plaintiffs have also met their burden with respect to their claim that AT&T Illinois fails to pay them for time spent completing time sheets after their shift ends. According to the declarations submitted by the seven named plaintiffs, AT&T Illinois does not allow cable splicers to return to their assigned garage until 20 minutes before the end of their shift, despite the fact that they require more than 20 minutes to complete their time sheets on the garage computers. They assert that as a result of the shortage they routinely have to stay past the end of their shift, but are not paid for the additional time. According to AT&T Illinois, Plaintiffs have not shown that they are similarly situated to other cable splicers because not all of the garages use computers for time entry and even those which do have only used computers for a portion of the three-year claim period. (R. 35, Def.'s Resp. at 3.) But to the extent that it is shown that not all of the opt-in plaintiffs are impacted by the computer shortage, as long as they are all subject to the same policy with respect to unpaid lunch ...


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