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Ries v. Planesphere Inc.

United States District Court, N.D. Illinois, Eastern Division

October 27, 2016

KAITLYN RIES, Plaintiff,


          JOHN W. DARRAH, United States District Court Judge.

         Plaintiff Kaitlyn Ries filed a Class and Collective Action Complaint against Planesphere, Inc. d/b/a Orbit Skate Center (“Orbit”), and Sandra L. Levin, for alleged violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq.; the Illinois Minimum Wage Law (“IMWL”), 820 Ill. Comp. Stat. 105/1, et seq.; and the Illinois Wage Payment and Collection Act (“IWPCA”), 820 Ill. Comp. Stat. 115/1, et seq. Plaintiff has moved for Certification of Collective Action, Disclosure of Potential Opt-In Plaintiffs' Contact Information, and Court-Approved Notice [8]. For the reasons stated below, Plaintiff's Motion [8] is granted in part and denied in part.


         The following is taken from the Class and Collective Action Complaint, exhibits, and briefs submitted by the parties. Planesphere, Inc., d/b/a Orbit Skate Center, is a corporation or business that does business in Illinois. (Compl. ¶ 19.) Orbit is a roller rink in Palatine, Illinois. (Id. ¶ 20.) Orbit employs full-time employees and a larger number of part-time employees. (Id. ¶ 21.)

         Plaintiff alleges that she and other employees were required to continue working after their scheduled work time but were not paid for this work time. (Id. ¶ 2.) Plaintiff alleges that the hours spent working after their scheduled work time were also sometimes “shaved” from paychecks. (Id.) Plaintiff further alleges that Defendants “docked” work hours from employees who used their cell phones while working and for other policy and procedure violations. (Id. ¶ 3.) This policy was communicated in a text message to all employees which read, in part: “If you are punched in, you are not to have your phone on your person, leave it in the office or in your car. If you are seen using your phone you will be docked 1 hour automatically for the first offense, and written up and docked 2 hours for the next offense.” (Id. ¶¶ 59-60.) Another communication was sent by David Mendoza, an Orbit manager: “If they see you standing around talking you will be docked. No free labor here, this is not the Red Cross. Thank you to the people who are working, Dave.” (Id. ¶¶ 64-65.) Plaintiff argues that, due to not being paid for working after their scheduled work time, to having hours “shaved, ” and to being docked, Defendants failed to pay minimum wages and overtime.


         The FLSA allows for a collective action “against any employer . . . by any one or more employees for and on behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). A court can decide if a class should be “conditionally” certified. See Russell v. Ill. Bell Co., 575 F.Supp.2d 930, 933 (N.D. Ill. 2008). “Plaintiffs only need to make a minimal showing that others in the potential class are similarly situated.” Mielke v. Laidlaw Transit Inc., 313 F.Supp.2d 759, 762 (N.D. Ill. 2004). Whether Plaintiff and the potential class are “similarly situated” is made using a “lenient interpretation” of the term. Id. “[A] court requires nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Jirak v. Abbott Labs., Inc., 566 F.Supp.2d 845, 848 (N.D. Ill. 2008) (citing Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102-03 (10th Cir. 2001)). If the plaintiff makes this minimal showing, the class is conditionally certified, and notice is sent to potential class members, who then have the opportunity to opt in. Id. (citing Heckler v. DK Funding, 502 F.Supp.2d 777, 779 (N.D. Ill. 2007); Mielke, 313 F.Supp.2d at 762).


         Plaintiff seeks conditional certification of her claims as a representative of an FLSA class, pursuant to 29 U.S.C. § 216(b), for a class consisting of the following persons:

All employees of Defendants employed as hourly employees who worked off-the-clock, had deductions taken from their wages, were docked time/wages from their pay which resulted in failure to pay overtime wages and/or minimum wages any time after March 17, 2013, and continuing thereafter through the date on which final judgment is entered in this action and who timely file (or have already filed) a written consent to be a party to this action pursuant to 29 U.S.C. § 216(b).

         Defendants argue that Plaintiff does not meet the requirements to be a class representative, that equitable tolling is not appropriate, and that the requested notice is overly broad.

         Conditional Certification

         For collective actions under the FLSA, the plaintiffs are given notice and an opportunity to opt in, rather than notice and an opportunity to opt out as in Rule 23 class actions. 29 U.S.C. § 216(b) (“No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.”); Woods v. N.Y. Life Ins. Co., 686 F.2d 578, 579-80 (7th Cir. 1982). Potential class members who do not opt in are not bound by the Court's decision. Vanskike v. Peters, 974 F.2d 806, 812-13 (7th Cir.1992); Woods, 686 F.2d at 580.

         At this stage, Plaintiff is asking for conditional certification of one class under the FLSA.[1] At this stage, plaintiffs must only 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). A plaintiff cannot rely solely on the allegations in the Complaint. Molina v. First Line Solutions, LLC, 566 F.Supp.2d 770, 786 (N.D. Ill. 2007). “Plaintiffs need not provide conclusive support, but they must provide an ...

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