United States District Court, N.D. Illinois, Eastern Division
DORIS M. SOLSOL and YOLI SANDRA RODRIGUEZ DIAZ, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,
SCRUB, INC. and TERESA KAMINSKA, Defendants.
MEMORANDUM OPINION AND ORDER
ROBERT W. GETTLEMAN, District Judge.
Plaintiffs Doris Solsol and Yoli Rodriguez Diaz, individually and on behalf of all others similarly situated, have brought a putative collective action complaint against defendants Scrub, Inc. ("Scrub") and Teresa Kaminska, alleging violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. Plaintiffs move for conditional class certification pursuant to 29 U.S.C. § 216(b) and issuance of a notice of the collective action to potential class members. For the reasons stated below, plaintiffs' motion is granted in part and denied in part.
Scrub is a company that provides janitorial services in the Chicago area. Defendant Kaminska was formerly the Owner and President of Scrub, but now serves as the company's Vice President of Operations. The overwhelming majority of Scrub employees work at O'Hare International Airport ("O'Hare"). Since at least October 2010, Scrub employees working at O'Hare provided an array of janitorial services under one of three types of contracts the company had at the airport. Until December 2012, approximately 422 Scrub janitors, including the named plaintiffs, worked under Scrub's contract with the City of Chicago to clean public walkways and bathrooms at O'Hare. During the relevant time period, Scrub also contracted with commercial airlines and other private companies to provide janitorial services for O'Hare's gate, concourse, ticketing, and office areas. Finally, Scrub had separate contracts with airlines to clean airplane cabins. Another 145 Scrub janitors worked at non-airport locations.
Scrub janitors working at O'Hare clock in and out at the start and end of their shifts. At non-airport locations, Scrub janitors orally report the amount of time worked to supervisors. Regardless of which way Scrub employees report their time, supervisors fill out Supervisor Payroll Input Sheets ("input sheets") to record the time each janitor worked on a given day. Sarah Coady, Scrub's Payroll Specialist, uses these input sheets, not the time cards or oral representations, to tabulate Scrub's employee payroll.
Plaintiffs claim that their compensation, as determined by the input sheets, violates the FLSA for several reasons. First, plaintiffs allege that defendant Kaminska trained Scrub supervisors to report on the input sheets scheduled hours only "for the days that [employees] are there and that they are not late and don't leave early." According to plaintiffs, this practice means that a janitor who starts work early and leaves on time or starts work on time and works late is not compensated for the additional time she worked. Second, plaintiffs allege that supervisors are taught to round a janitor's time to the nearest 15 minutes when she arrives late or leaves early. For example, a janitor who arrives 5 minutes late may be docked 15 minutes and, thus, is uncompensated for 10 minutes of work. Third, plaintiffs allege that 30 minutes are automatically deducted from each janitor's scheduled shift to account for a meal break, even if the janitor is ordered to return to work during the break.
Plaintiffs seek to conditionally certify a class pursuant to 29 U.S.C. § 216(b), defined as: "All hourly non-exempt employees of Defendants (or their subsidiaries, affiliates, predecessors and/or successors), employed between October 24, 2010 through to the present, whose payroll was calculated from supervisor payroll input sheets and who were not paid for all time worked." At the time plaintiffs filed the instant motion, 276 Scrub janitors had opted into the putative collective action, representing approximately 9 percent of Scrub's more than 3, 500 hourly janitorial employees.
A. Legal Standard
Section 216(b) of the FLSA permits plaintiffs to bring a collective action against an employer for unpaid minimum wages or overtime compensation on behalf of themselves and others "similarly situated." 29 U.S.C. § 216(b). A collective action under section 216(b) differs from a class action under Fed.R.Civ.P. 23 in that Rule 23 binds class members unless they opt out, whereas collective action members are bound under section 216(b) only if they opt into the action by providing their written consent. Woods v. New York Life Ins. Co., 686 F.2d 578, 579-80 (7th Cir. 1982).
Courts in this district employ a two-step process for determining whether an FLSA lawsuit should proceed as a collective action. Dailey v. Groupon, Inc., No. 11-C-5685, 2014 WL 4379232, at *3 (N.D. Ill. Aug. 27, 2014). The first step requires the named plaintiff to establish that the potential class members are similarly situated by making a modest factual showing that they were victims of a common policy or plan to violate the law. Id . "[T]he similarly situated standard is a liberal one... [that] typically results in conditional certification of a representative class." Rottman v. Old Second Bancorp, Inc., 735 F.Supp.2d 988, 990 (N.D. Ill. 2010) (internal quotations omitted). Similarly, the modest factual showing standard is lenient and demands only some factual support. Johnson v. Pinstripes, Inc., No. 12-C-1018, 2013 WL 5408657, at *2 (N.D. Ill. Sept. 26, 2013). In applying these standards, "the court does not consider the merits of a plaintiff's claims, or witness credibility." Nehmelman v. Penn Nat. Gaming, Inc., 822 F.Supp.2d 745, 751 (N.D. Ill. 2011).
At the second step, which takes place following discovery, the analysis is more rigid and requires the court to consider: "(1) whether the plaintiffs share similar or disparate factual and employment settings; (2) whether the various affirmative defenses available to the defendant would have to be individually applied to each plaintiff; and (3) fairness and procedural concerns." Dailey, 2014 WL 4379232, at *3. "At that time, a defendant may move to decertify the case or divide the class into subclasses." Johnson, 2013 WL 5408657, at *3 (internal quotations omitted).
At this stage of the proceedings, the court must determine whether the named plaintiffs have made a "modest factual showing" sufficient to demonstrate that the proposed class members were potentially victims of a common policy or plan that violated the FLSA. Gambo v. Lucent Technologies, Inc., No. 05-C-3701, 2005 WL 3542485, at *4 (N.D. Ill.Dec. 22, 2005). As discussed above, defendants do not contest conditional certification of all Scrub janitors who worked at O'Hare under the company's contract with the city. Defendants, however, do contest including as a part of the collective action Scrub janitors who worked outside of O'Hare (approximately 145 employees) and janitors who worked at O'Hare under private contracts (approximately 3, 500 employees). In opposition to conditional certification of this broad class, defendants argue that plaintiffs have failed to present evidence to support a showing that a common policy or plan existed in regard to these two groups of prospective ...