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Jason Jankuski, Brooke Mckinney and Alton Morris, Individually and v. Heath Consultants

December 5, 2012


The opinion of the court was delivered by: Judge John W. Darrah


Plaintiffs Jason Jankuski, Brooke McKinney, and Alton Morris claim Defendants Heath Consultants, Inc.*fn1 ("Heath"); Graham Midgley; and Gary Lape violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., by failing to accurately maintain records of time worked by Plaintiffs and failing to pay the time worked by Plaintiffs. Plaintiffs have moved for conditional certification of a collective action and to facilitate notice under 29 U.S.C. § 216(b).*fn2 For the reasons discussed below, the Motion is granted.


The following facts are taken from the allegations in Plaintiffs' Complaint and from declarations (with attached exhibits) submitted in connection with the parties' briefs in support of and in opposition to Plaintiffs' Motion.

Heath provides gas management services and products to utilities and municipalities, which in turn provide gas services to consumers. (Resp. at 3.) Specifically, Heath provides gas management services and products for People's Gas throughout the State of Illinois. (Mot. at 4; Resp. at 3.) Graham Midgley is the President and CEO of Heath, and Gary Lape is the Vice President of Operations. (Compl. ¶¶ 10-11.) In these positions, Lape and Midgley have the authority to hire and fire employees; direct and supervise employees' work; and make decisions pertaining to wages, employee hours, and employee compensation. (Id.) Named Plaintiffs are former employees of Heath. (Compl. ¶ 12; Resp. at 9.) Plaintiffs were employed by Heath as shutoff technicians. (Mot. Ex. B, Jankuski Decl. ¶¶ 1, 5; Ex. B, McKinney Decl. ¶¶ 1, 5; Ex. B., Morris Decl. ¶¶ 1, 5.) Specifically, Plaintiffs seek to bring claims on behalf of all shutoff technicians, including named Plaintiffs, who were subjected to Defendants' treatment, which included: (1) Defendants' failure to pay Plaintiffs for time worked prior to the start of their shifts and failure to properly record this time; (2) Defendants' failure to record and pay Plaintiffs for work performed after their scheduled shifts; (3) Defendants' automatic deduction from Plaintiffs' pay for their use of company vehicles.

Plaintiffs move to conditionally certify a collective action. Plaintiffs propose the following as a definition of the putative plaintiffs entitled to notice: "All individuals who were employed, or are currently employed, by one or more of the Defendants, its subsidiaries or affiliated companies, as technicians or any other similarly-titled position at any time during the relevant statute of limitations period." (Mot. at 2.)


The FLSA entitles nonexempt employees to receive one-and-a-half times their regular rate of pay for each hour worked above forty per week. See 29 U.S.C. § 207. A plaintiff may bring a collective action on behalf of "other employees similarly situated" in an action to recover unpaid wages. 29 U.S.C. § 216(b). Unlike class actions under Federal Rule of Civil Procedure 23, members of a Section 216(b) collective action are not bound by the court's decision unless they "opt-in." See Woods v. New York Life Ins. Co., 686 F.2d 578, 580 (7th Cir. 1982); Jirak v. Abbott Labs., Inc., 566 F. Supp. 2d 845, 847 (N.D. Ill. 2008) (Jirak).

The FLSA does not contain specific provisions governing how collective actions are to proceed, and neither the Supreme Court nor the Seventh Circuit provide definitive guidance regarding the burden of establishing that others are "similarly situated" for purposes of providing notice to potential claimants. Consequently, the management of these actions has been left to the discretion of the district courts. See Jirak, 566 F. Supp. 2d at 847 (citing Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 170-72 (1989)).

Collective actions under the FLSA generally operate under a two-step process. See Russell v. Ill. Bell Tel. Co., 575 F. Supp. 2d 930, 933 (N.D. Ill. 2008) (Russell). First, the plaintiff must show there are similarly situated employees who are potential claimants. Mielke v. Laidlaw Transit, Inc., 313 F. Supp. 2d 759, 762 (N.D. Ill. 2004). To meet this burden, the 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." Flores v. Lifeway Foods, Inc., 289 F. Supp. 2d 1042, 1045 (N.D. Ill. 2003) (citation omitted). This initial certification is conditional, and courts use a "lenient interpretation" of the term "similarly situated." Russell, 575 F. Supp. 2d at 933. If a plaintiff meets this burden, conditional certification should be granted. Notice may then be sent to potential class members, allowing them an opportunity to opt in to the action. See Heckler v. DK Funding, LLC, 502 F. Supp. 2d 777, 779 (N.D. Ill. 2007) (Heckler).

The second step of the collective-action process comes after the opt-in process is completed and discovery has commenced. Then, the defendant may ask the court to "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, 848 (quoting Heckler, 502 F. Supp. 2d at 779). If the court determines such similarities do not exist, conditional certification can be revoked. Russell, 575 F. Supp. 2d at 933.

At this first stage, "[u]nless defendant admits in its answer or briefs that other similarly situated employees exist, plaintiffs cannot rely on their allegations alone to make the required modest factual showing." Molina v. First Line Solutions LLC, 566 F. Supp. 2d 770, 786 (N.D. Ill. 2007) (Molina); see also Howard v. Securitas Security Servs., USA Inc., No. 08 C 2746, 2009 WL 140126, at *5 (N.D. Ill.

Jan. 20, 2009) (stating that the court should not accept all allegations as true but must evaluate the record before it). Although Plaintiffs are not required to provide conclusive support for their claims at this stage, "they must provide an affidavit, declaration, or other support beyond allegations in order to make a minimal showing of other ...

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