The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Plaintiff Wendell Smith's (Smith) motion for conditional certification of collective action under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. For the reasons stated below, the motion is granted.
Smith allegedly worked as an hourly employee at one or more Burger King Restaurants (Restaurants) owned and operated by Defendant C.H. James Restaurant Holdings, LLC, and Defendant C.H. James & Company. Defendant Charles "Chuck" James III (James) is allegedly involved in the day-to-day operation of the Restaurants. Smith contends that the Restaurants have a computerized time-keeping system, which employees use to clock in and out of work. Smith contends that once a day during certain shifts, for approximately twenty to sixty minutes, the time-keeping system would reboot itself. Smith contends that during the system rebooting, he worked "off the clock" and was not compensated for that work. (A Compl. Par. 14). Smith also alleges that he was required to perform other "off the clock" work for which he was not compensated. (A. Compl. Par. 13-14). Smith includes in his amended complaint a claim alleging the denial of overtime wages brought under the Illinois Minimum Wage Law, 820 ILCS 105/1 et seq. (Count I), a claim alleging denial of compensation brought under the Illinois Wage Payment and Collection Act, 820 ILCS 115/1 et seq. (Count II), and a claim alleging the denial of overtime wages brought under the FLSA (Count III). On January 26, 2012, the court granted Defendants' motion to dismiss Count II and denied James' motion to dismiss the claims brought against him in Counts I and III. Smith now moves for conditional certification of collective action under the FLSA.
The FLSA specifies that employees have "the right to bring their FLSA claims through a 'collective action' on behalf of themselves and other 'similarly situated' employees." Alvarez v. City of Chicago, 605 F.3d 445, 448 (7th Cir. 2010)(quoting in part 29 U.S.C. § 216(b)). A collective action brought under the FLSA "is similar to, but distinct from, the typical class action brought pursuant to" Federal Rule of Civil Procedure 23 (Rule 23). Id. The main difference between a FLSA collective action and a Rule 23 class action "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." Id.
The FLSA does not specify the process by which a court should determine whether plaintiffs can pursue FLSA claims as a collective action, and district courts have discretion in determining the appropriate process. See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169-70 (1989)(holding that "district courts have discretion, in appropriate cases, to implement 29 U.S.C. § 216(b) . . . by facilitating notice to potential plaintiffs"); Alvarez, 605 F.3d at 449 (stating that "[a] district court has wide discretion to manage collective actions"). As to the process for determining whether a FLSA lawsuit should proceed as a collective action, the majority of district courts in this district have followed a two-step process. Jirak v. Abbott Laboratories, Inc., 566 F. Supp.2d 845, 847-48 (N.D. Ill. 2008). The court also notes that the Seventh Circuit has recognized that district courts employ the two-step process and has not indicated that the process was improper. See, e.g., Ervin v. OS Restaurant Services, Inc., 632 F.3d 971, 974 (7th Cir. 2011)(explaining that "[t]he conditional approval process is a mechanism used by district courts to establish whether potential plaintiffs in the FLSA collective action should be sent a notice of their eligibility to participate and given the opportunity to opt in to the collective action").
At the initial step of the certification process, the plaintiffs are required "only . . . to make a minimal showing that others in the potential class are similarly situated." Jirak, 566 F. Supp.2d at 847. If the plaintiff meets that "minimal showing, the class is conditionally certified and notice is sent to potential class members, giving them an opportunity to opt in." Id.; see also Wynn v. Express, LLC, 2012 WL 386716, at *1 (N.D. Ill. 2012)(stating that at the initial step, "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'")(quoting Flores v. Lifeway Foods, Inc., 289 F.Supp.2d 1042, 1045 (N.D. Ill. 2003)); Perez v. Comcast, 2011 WL 5979769, at *1 (N.D. Ill. 2011)(stating that "[f]irst, the court considers whether to conditionally certify a class" and that "[t]o obtain this relief, a plaintiff 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")(internal quotations omitted)(quoting Hundt v. DirectSat USA, LLC, 2010 WL 2079585, at *2 (N.D. Ill. 2010)).
At the second step of the process, "which occurs after the parties have engaged in discovery and the opt-in process is completed, the court's inquiry is more stringent" and "the Court must reevaluate the conditional certification to determine whether there is sufficient similarity between the named and opt-in plaintiffs to allow the matter to proceed to trial on a collective basis." Jirak, 566 F. Supp.2d at 847. At the second step, the court must also determine: "(1) whether the plaintiffs share similar or disparate employment settings; (2) whether affirmative defenses raised by the defendant would have to be individually applied to each plaintiff; and (3) any fairness and procedural concerns." Id. In the instant action, Defendants argue that Smith has a conflict with the proposed class members and that Smith has failed to show that he is similarly situated to the class he seeks to represent.
I. Conflict with Proposed Class Members
Defendants argue that the record shows that Smith has an inherent conflict with the members of the proposed class. Defendants contend that the class that Smith seeks to certify includes employees that were instructed by management to work off-the-clock. Defendants argue that Smith was a "Shift Manager," supervising and directing the work of employees and thus was at least, in part, responsible for any employees that worked off-the-clock. Defendants contend that Smith, as part of management, has a conflict of interest with the rest of the proposed class, since he allegedly caused the FLSA violations.
Smith has provided an affidavit indicating that he never received any notice that he had been promoted to a "Shift Manager," and that he never received any salary raise indicating a promotion to such a management position. (Smith Supp. Aff. Par. 2-3). Smith also states that he never received the mandatory management class required to become a member of management. (Smith Supp. Aff. Par. 2). Smith's personnel file refers to him as a "Team Member" and "Kitchen Person," but does not indicate that he was promoted to management except for one notation on Smith's discharge notice, referring to Smith as a "Shift Manager." (Schiff Ex. B); (Reply Ex. 2). The personnel file also contains various work schedules for the non-management employees at the restaurant, and there is no indication on such work schedules that Smith was being scheduled to work those hours as a member of management.
Defendants have provided with their opposition to the instant motion an affidavit from Mary Schiff (Schiff), a District Manager, stating that Smith "was eventually promoted and assumed the position of Shift Manager. . . ." (Schiff Aff. Par. 6). However, Schiff fails to indicate when Smith was "eventually promoted."
(Schiff Aff. Par. 6). The documentary evidence presented thus far indicates that Smith was promoted on the same day that his employment was terminated. Nor has Schiff or Defendants provided any documentation of the promotion, explained why such documentation could not be located, or produced any evidence that indicates that Smith instructed other employees to work off-the-clock or had any responsibility relating to the time-keeping system or the rebooting of the computers at the Restaurants. Defendants have failed to provide sufficient evidence at this juncture to show that Smith was a member of management. The few self-serving documents, such as the discharge paper on the day of Smith's termination and the general statement by Schiff are not sufficient to indicate that Smith was responsible for the alleged violations of the FLSA or that Smith has any inherent conflict with the class. Defendants have not presented sufficient evidence to call into doubt the statements made by Smith ...