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Tita Camilotes, Edith Asidao, Ronda Brady, Fabienne Fify v. Resurrection Health Care Corporation

January 25, 2012

TITA CAMILOTES, EDITH ASIDAO, RONDA BRADY, FABIENNE FIFY,
CHIARA DEL GIUDICE, ETHEL BARBEE, RACHELLE VARDON, DONALD MOARN,
CANDACE DOBRINO, INDIVIDUALLY AND ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
RESURRECTION HEALTH CARE CORPORATION, SAINT JOSEPH HOSPITAL, SAINTS MARY AND ELIZABETH MEDICAL CENTER, OUR LADY OF THE RESURRECTION MEDICAL CENTER, WEST SUBURBAN MEDICAL CENTER, WESTLAKE COMMUNITY HOSPITAL, RESURRECTION MEDICAL CENTER,
HOLY FAMILY MEDICAL CENTER, AND SAINT FRANCIS HOSPITAL, DEFENDANTS.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge:

MEMORANDUM OPINION AND ORDER

Plaintiffs have moved for a protective order requiring Defendants to cease communicating with staff nurses about this lawsuit on the hospitals' premises and during work hours. They further ask the Court to order Defendants to produce the signed declarations they obtained from staff nurses and to provide the nurses' contact information. Plaintiffs also seek copies of the unsigned declarations of two nurses who are plaintiffs in this action. For the following reasons, the Court grants Plaintiffs' motion in part and denies it in part.

BACKGROUND

I. Plaintiffs' Claims

Plaintiffs filed their Complaint against Defendants Resurrection Health Care Corporation, et al. ("Defendants") pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. Plaintiffs, non-exempt staff nurses employed by Defendants, allege that Defendants failed to compensate them for all hours worked. Specifically, Plaintiffs allege that although Defendants regularly required Plaintiffs to work through all or part of their meal breaks, Defendants subjected Plaintiffs to automatic deductions for their scheduled meal breaks. In addition to their FLSA claims, Plaintiffs also seek to recover unpaid wages under the Illinois Minimum Wage Law ("IMWA"), 820 ILCS 105/1 et seq., the Illinois Wage Payment and Collection Act ("IWPCA"), 820 ILCS 115/1 et seq., and Illinois common law. Plaintiffs seek to bring their FLSA claim as a collective action under 29 U.S.C. § 216(b) and their IMWA and IWPCA claims as a class action under Federal Rule of Civil Procedure ("Rule") 23.

On September 13, 2010, the Court entered an order authorizing Plaintiffs to mail a notice to join the FLSA collective action to hourly nurses whom Defendants employ. Plaintiffs sent notices to 5,029 nurses, and 303 of those opted to join the FLSA class (the "Opt-In Plaintiffs"). Subsequently, 86 of the 303 Opt-In Plaintiffs either voluntarily dismissed their claims or withdrew from the lawsuit, leaving an FLSA class of 217 individuals. Plaintiffs have not yet filed their motion to certify the class under Rule 23.

II. Defendants' Contacts with Putative and Opt-In Plaintiffs

A. The interviews

During the course of this litigation, project assistants at Defendants' counsel's law firm interviewed nurses who are employed by Defendants in order to investigate the allegations in Plaintiffs' Complaint. (R. 163 at 3.) Defendants state that they sought to interview only nurses who had not opted into the FLSA class and were not otherwise represented by Plaintiffs' counsel or other counsel. (Id.)

The project assistants worked individually to interview the nurses separately, and no lawyer or representative from management or human resources was present during the interviews. (Id., citing R. 163-1, Woods Decl. ¶¶ 2-3, 5, 7; R. 163-2, Yoo Decl. ¶¶ 2-5; R. 163-3, Hekhuis Decl. ¶¶ 2-5.*fn1 ) Before each interview, the project assistant conducting the interview read the following preliminary statement:

My name is [] and I am a project assistant at the Chicago law firm of Vedder Price P.C. My firm is representing [insert hospital] in a lawsuit filed by some current and former nurses who claim they were not paid all wages that were due [sic] them. These nurses are seeking to bring their claims on behalf of all nurses who worked at the hospitals during the last [five] years, which includes you.

To help us in defending this case, I'd like to ask you some questions about your job and how your hours of work are recorded and paid. Before we begin, have you have [sic] been contacted by any lawyer about this case? [If so, did you agree to be represented by counsel?] [Note - if they talked to counsel and are represented by counsel, END the conversation.] [DO NOT ASK WHAT THEY SPOKE ABOUT] Please understand that you don't have to speak with me or answer any of my questions. You can leave right now if you wish to. Or at any time while we're talking, you can stop the interview and leave. Your participation is completely voluntary.

Also, please understand that your job will not be affected in any way because you decide to talk with me, or not to talk with me. The Hospital will not give you any benefits or take any action against you. The Hospital will not do anything to affect your job, either favorably or unfavorably, because of any answers you give to my questions.

Do you understand what I have just explained? Do you have any questions about what I have just told you? Is it all right with you ...


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