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Eric Wynn, Rochelle Edwards, and Tisha Mar Callo v. Express

March 14, 2012

ERIC WYNN, ROCHELLE EDWARDS, AND TISHA MAR CALLO, PLAINTIFFS,
v.
EXPRESS, LLC, DEFENDANT.



The opinion of the court was delivered by: James F. Holderman, Chief Judge:

MEMORANDUM OPINION AND ORDER

Plaintiffs, three former employees of clothing retailer Express, LLC, filed a motion for conditional certification of a collective action under U.S.C. § 216(b). (Dkt. Nos. 46, 54.) The action alleges that Express violated the Fair Labor Standards Act ("FLSA") by failing to pay its employees for making bank deposits after the employees clocked out each night.

On February 6, 2012, the court granted plaintiffs' motion for conditional class certification in part and certified the following class: "All persons who worked for Defendant as non-exempt employees throughout the United States at any time between July 28, 2008 and October 15, 2010 and who made a night bank deposit after clocking out for the day." (Dkt. No. 91, at 10.) The court also took the motion under advisement in part and requested additional briefing "on the question of whether it is appropriate under 29 U.S.C. § 216(b) to send court-approved notice to a significantly larger group of individuals than have been conditionally certified in the proposed class." (Id.) After considering the additional briefing from both parties, the court determines that court-approved notice should be sent only to non-exempt employees who worked at any time from July 28, 2008 through October 15, 2010 at (1) the eleven stores at which employee testimony indicates night bank deposits occurred after employees clocked out for the day and (2) the additional stores which reported that employees performed night bank after clocking out for the day in the 2010 Survey, excepting only employees in Illinois who did not opt-out of Eggins v. Express, LLC, No. 10 CH 38790 (Ill. Cir. Ct. Cook Cnty.), and employees at the twenty-nine stores using an armored car service for bank deposits during the entire class period.

BACKGROUND

Prior to October 15, 2010, the 573 Express stores in the United States were subject to the following policy:

Stores with a bank depository in the mall may make their deposit at night. A few stores have to make deposits at locations which are a short drive from the mall.

These deposits should only be made in the morning, never at night.

For all deposits, at least two people must be present. . . .

Even if your drop is in the mall, at least two associates . . . must walk to the depository with the deposit discretely concealed in an Express poly bag. (Dkt. No. 46, Ex. 6.) On October 2, 2010, Express sent notice to all of its stores that the policy was changing, effective October 15, 2012, to require all bank deposits to be made in the morning, rather than allowing some to be made at night. (Dkt. No. 83, Ex. 17 ¶ 3;Dkt. No. 46, Ex. 7.) The plaintiffs are three former Express employees who were required to make bank deposits at night after they had already clocked out. (Dkt. No. 46, at 2.)

Eight employees who worked at eleven Express stores around the country have stated in an affidavit or in a deposition that they were required to make night bank deposits after clocking out. (Dkt. No. 46, Exs. 2, 4, 12; Dkt. No. 87, Exs. 6, 7, 8, 9; Dkt. No. 88, Ex. 12.) All of those employees stated that when making night deposits, they clocked out, closed the store, and then traveled some distance to the bank to make the deposit before they were allowed to travel home. (Dkt. No. 46, Exs. 2, 4, 12; Dkt. No. 87, Exs. 6, 7, 8, 9; Dkt. No. 88, Ex. 12.) They stated further that they were not compensated for the time spent making the bank deposit after clocking out. (Dkt. No. 46, Exs. 2, 4, 12; Dkt. No. 87, Exs. 6, 7, 8, 9; Dkt. No. 88, Ex. 12.) In addition, the plaintiffs submitted the deposition testimony of Express's Chicago district manager, who stated that employees performed night bank deposits after clocking out in some of her stores. (Dkt. No. 46, Ex. 10, at 35, 78.)

In September 2010, Express conducted a written survey (the "2010 Survey") asking the stores in business at the time in the United States the method by which they made bank deposits. (Dkt. No. 83, Ex. 17 ¶ 11.) Only 385 stores responded to the survey. (Id. ¶ 11.) Of those 385 stores, 142 stores indicated that they made night bank deposits, and 226 stores indicated they made morning or afternoon deposits. (Id.) The survey indicates how stores made bank deposits only at the time of the survey. (Dkt. No. 99, Ex.7, at 11.) In addition, Joe Reisinger, the Vice President for Brand Security at Express, indicated that Express's records show that twenty-nine stores used an armored car service to deliver bank deposits throughout the class period, rather than using associates. (Dkt. No. 83, Ex. 17 ¶ 8.)

LEGAL STANDARD

The FLSA provides that "[a]n action to recover the liability prescribed in [the FLSA] may be maintained . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). To become a member of an FLSA collective action, a prospective plaintiff need only opt-in by consenting in writing and filing the consent in the court in which the action is pending. Id. A person who does not consent is not part of the FLSA collective action. Gambo v. Lucent Techs., Inc., No. 05 C 3701, 2005 WL 3542485, at *3 (N.D. Ill. Dec. 22, 2005).

In Hoffmann-La Roche Inc. v. Sperling, the Supreme Court held that district courts have discretion to implement the collective action provisions of 29 U.S.C. § 216(b) "by facilitating notice to potential plaintiffs." 493 U.S. 165, 169 (1989). Thus, "[a]lthough a plaintiff in an FLSA collective action is not required to seek leave of the court prior to issuing notice of the lawsuit to prospective members," Anyere v. Wells Fargo, Co.,No. 09 C 2769, 2010 WL 1542180, at *1 (N.D. Ill. Apr. 12, 2010), a court presiding over such a case may choose in its discretion to certify a collective action and order that notice be sent to potential plaintiffs. Before a court may send such notice, the plaintiffs seeking collective relief bear the burden of showing that the potential claimants are in fact "similarly situated" as required by the FLSA. Id. To do so 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.'" Id. (quoting Flores v. Lifeway Foods, Inc., 289 F. ...


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