The opinion of the court was delivered by: Sara Darrow United States District Judge
Wednesday, 11 July, 2012 04:57:13 PM
Clerk, U.S. District Court, ILCD
This case involves Plaintiffs' claims against Defendant Atlas Roofing Corporation for allegedly failing to comply with the overtime pay provisions of the Fair Labor Standards Act, 29 U.S.C. 201 et seq. ("FLSA"). Plaintiffs presently have two motions before the Court. First, the named Plaintiffs have filed an unopposed motion for conditional certification of a collective action and for approval of the proposed form, content, and mailing-notification to be given to additional prospective co-plaintiffs. (Mot. to Certify Class Conditionally and to Approve Proposed Notice (Uncontested) ("Mot. to Certify"), ECF No. 15.) Second, Plaintiffs filed a motion seeking an order compelling Defendant to supplement the mailing-notification by posting the proposed notice of the collective action in Defendant's facilities. (Mot. for Additional Class Notice, ECF No. 16.) For the reasons set forth below, the Court GRANTS Plaintiffs' Uncontested Motion for Class Certification, approves the proposed notice of lawsuit, and DENIES Plaintiffs' Motion for Additional Class Notice.
Plaintiffs in this action are former nonexempt hourly workers at Defendant's facility in East Moline, Illinois. (Compl. at ¶ 1, ECF No. 1.) Plaintiffs seek to bring a collective action, on behalf of themselves and others similarly situated, under the overtime pay provisions of the FLSA. Plaintiffs have defined the collective group of prospective plaintiffs as "all persons working in hourly production positions for Atlas Roofing Corporation at the East Moline, Illinois plant for the period of August 31, 2008 to the present." (Compl. at ¶ 16.) Plaintiffs allege that Defendant required these employees to remain on the premises and "within visual range of the lunchroom window" during their unpaid lunch break and that they were required to work "nearly every day" during their lunch break. (Compl. at ¶¶ 2, 31(c).) As a result of Defendant's requirements, Plaintiffs assert that they worked in excess of forty hours each work week. (Compl. at ¶ 29.) Plaintiffs allege that Defendant violated the FLSA since they were not paid overtime for the work they performed in excess of forty hours per week.
Under the FLSA, nonexempt employees are entitled to overtime pay of at least one and a half times their normal hourly rate for any time worked in excess of forty hours per week. 29 U.S.C. §207(a)(1). A collective action seeking redress under the FLSA is distinct from a class action under the Federal Rules of Civil Procedure and is subject to different standards. See Fed. R. Civ. P. 23; North v. Bd. of Tr. of Ill. State Univ., 676 F. Supp. 2d 690, 694 (C.D. Ill. 2009). While a Rule 23 class action operates on an "opt-out" basis, in which eligible parties are included in the class by default, Fed. R. Civ. P. 23(c)(2), parties who wish to join a collective action under the FLSA as plaintiffs must "opt-in" by filing written consent with the court. See 29 U.S.C. §216(b); North, 676 F. Supp at 694 (citing Woods v. New York Life Ins. Co., 686 F.2d 578, 580 (7th Cir. 1982)). A prospective collective member who does not "opt-in" is not bound by the court's decision in the collective action. Jirak v. Abbott Labs., Inc., 566 F. Supp. 2d 845, 848 (N.D. Ill. 2008).
The majority of courts, including the district courts of this Circuit, have adopted a two-step approach to collective actions under the FLSA.*fn1 North, 676 F. Supp. at 694 (collecting cases). In the first step, the Court determines whether the plaintiffs have made a "modest factual showing that the members of the proposed collective action are 'similarly situated.'" Id. If this factual burden is met, the Court may conditionally certify the collective action. Id. The Court may then order that notice be sent to prospective members informing them of their right to "optin" as co-plaintiffs in the action. See Jirak, 566 F. Supp. 2d at 847. At the second step, which occurs after the close of discovery and the prospective plaintiffs' "opt-in" period, the Court reevaluates whether the plaintiffs are sufficiently "similarly situated" to justify a collective action. North, 676 F. Supp. 2d at 695. If the evidence adduced during discovery demonstrates that the individuals that have joined the action are not truly similarly situated relative to the claims asserted in the complaint, the Court can revoke the conditional certification of the collective action. Id.
A. Conditional Certification
Before the Court is Plaintiffs' unopposed motion for conditional certification of the proposed FLSA collective action. The motion is uncontested, but Defendant expressly reserved its right to move the Court to decertify any collective action that is conditionally approved by the Court at this time. (See Mot. to Certify ¶ 2 ("Defendant reserves the right to move to decertify the collective action at a later date.").) Defendant's reservation of rights is entirely consistent with the two-step approach to certification and Defendant will be able to challenge the conditional certification in a secondary review after all prospective members have had the opportunity to opt-in to the suit and the questions of fact have been investigated more thoroughly by the parties. See Alexander v. Caraustar Ind., No. 11 C 1007, 2011 WL 2550830, at *2 (N.D. Ill. 2011); Jirak, 566 F. Supp. 2d at 850; DeKeyser v. Thyssenkrupp Waupaca, Inc., No. 08-C-488, 2008 WL 5263750, at *4 (E.D. Wis. 2008).
At this time, the Court finds that Plaintiffs have made an adequate factual showing for certification. See North, 676 F. Supp. 2d at 694. An "affidavit, declaration, or other support beyond allegations" is typically sufficient to overcome the modest burden of showing that other similarly situated employees exist. Molina v. First Line Solutions L.L.C., 566 F. Supp. 2d 770, 786 (N.D. Ill. 2007). Plaintiffs submitted affidavits from five employees, each stating that the employee was not paid for work performed during unpaid lunch breaks and that the employee was told to remain on the company premises during those lunch breaks. Furthermore, each affidavit refers to "co-workers" and "fellow employees" who were subject to the same policies. (See, e.g., Dion Litting Aff. ¶¶ 3, 4, ECF No. 2-2.) The affidavits also refer to "company-wide meetings" where ...