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Hudson v. Protech Security Group, Inc.

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

February 21, 2017

WILLIAM HUDSON, individually and on behalf of all other all others similarly situated, Plaintiff,



         On December 9, 2015, plaintiff William Hudson brought suit on behalf of himself and a group of allegedly similarly situated security officers and patrol personnel currently and formerly employed by defendants Protech Security Group and its president, Keith Benson (collectively, "Protech"), for violations of the Fair Labor Standards Act ("FLSA"), Illinois Minimum Wage Law ("IMWL"), and Illinois Wage Payment and Collection Act ("IWPCA") (doc. # 1: Compl.). The parties have conducted limited discovery into certification of a class or collective action, and plaintiff has now filed a motion for conditional certification of an opt-in class and approval of notice pursuant to 29 U.S.C. § 216(b) (doc. # 25); plaintiff does not seek, at this time, certification of a class pursuant to Federal Rule of Civil Procedure 23. For the reasons that follow, we grant plaintiffs motion for conditional certification, and postpone ruling on plaintiffs proposed opt-in notice until the parties meet and confer on this issue.


         "Among its other provisions, the FLSA requires employers to pay overtime compensation to covered employees who work more than 40 hours in a given week. The rate of overtime pay must be 'not less than one and one-half times the regular rate' of the employee's pay." Encino Motorcars, LLC v. Navarro, 136 S.Ct. 2117, 2121 (2016) (quoting 29 U.S.C. § 207(a)). Section 16(b) of the FLSA "gives employees the right to bring a private cause of action on their own behalf and on behalf of 'other employees similarly situated' for specified violations of the FLSA. A suit brought on behalf of other employees is known as a 'collective action.'" Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1527 (2013) (quoting 29 U.S.C. § 216(b)). Unlike a class action brought pursuant to Federal Rule of Civil Procedure 23, under the FLSA, "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." Alvarez v. City of Chicago, 605 F.3d 445, 448 (7th Cir. 2010) (citing 29 U.S.C. § 216(b)).

         Neither the FLSA nor its implementing regulations define the term "similarly situated, " and neither the Supreme Court nor the Seventh Circuit has specified a procedure courts must employ to decide certification and notice issues under the FLSA. Allen v. City of Chicago, No. 10 C 3183, 2013 WL 146389, at *2 (N.D. 111. Jan. 14, 2013) (Schenkier, J.). However, courts in this district have commonly applied a two-stage test to determine whether an FLSA claim may proceed as a collective action. See Boltinghouse v. Abbott Labs. Inc., 15-6223, 2016 WL 3940096, at *2 (N.D. 111. July 20, 2016). "At the first stage, the court makes an initial determination whether notice should be sent to potential opt-in plaintiffs who may be similarly situated to the named plaintiff." Steger v. Life Time Fitness, Inc., No. 14-6056, 2016 WL 6647922, at *1 (N.D. 111. Nov. 10, 2016). To demonstrate that potential opt-in plaintiffs are similarly situated at this stage, the named plaintiff "must make a modest factual showing sufficient to demonstrate that she and the potential opt-in plaintiffs were victims of a common policy or plan that violated the FLSA." Id. "In the second stage, following the completion of the opt-in process and merits-related discovery, a defendant may move to decertify the conditional class. In that event, a court must reevaluate the conditional certification in a more stringent inquiry." Allen, 2013 WL 146389, at *3.


          In this case, plaintiff contends that Protech maintains an unlawful policy to not pay plaintiff and similarly situated employees for all time worked, including failing to pay them overtime at a rate of one and a half times their regular rate and wrongfully classifying Protech's employees as independent contractors, in an effort to avoid paying overtime wages (doc. # 1: Compl., ¶¶ 17, 21-22). In its answer to plaintiffs complaint, Protech states that it paid employees for the time they worked, including "additional compensation" for security officers who worked more than forty hours per week (doc. # 13: Defs.' Ans. to Compl, ¶¶ 17, 21). Protech explains that this additional compensation was paid as a "bonus for working overtime, " and that these bonuses "often exceeded the technically correct overtime amount" (Id., ¶ 40). However, Protech "lacks knowledge or information sufficient to form a belief as to whether such payments were less than the technically correct overtime amount" (Id.). Protech agrees that it sometimes classified security workers as independent contractors rather than employees, but states that such classification changes are made at the employees' request (Id., ¶ 18).

         This case is currently at stage one of the collective action analysis: the parties have done initial opt-in discovery (which has not included any depositions), and plaintiff has filed a motion for conditional certification. To determine whether plaintiff has made the required modest factual showing, "plaintiffs must provide some evidence in the form of affidavits, declarations, deposition testimony, or other documents to support the allegations that other similarly situated employees were subjected to a common policy that violated the law." Pieksma v. Bridgeview Bank Mortg. Co., LLC, No. 15 C 7312, 2016 WL 7409909, at *1 (N.D. 111. Dec. 22, 2016) (internal quotations omitted). To make that showing, Mr. Hudson, who was employed as a security officer at Protech from approximately 2001 through 2015, attaches his own affidavit, a sampling of Protech's payroll records, and attorney-created "summary tables" based on the Protech records as evidence in support of his claim that Protech subjects its employees to a common policy that violates the FLSA.

         In his affidavit, plaintiff attests that throughout his employment with Protech, he and other security officers worked in excess of forty hours during most individual work weeks and were "not paid time and half, or overtime wages, for such work" (doc. # 26: PL's Mem. in Supp. of Mot. for CondT Cert., Ex. 5: Hudson Aff, ¶ 9). In addition, Mr. Hudson states that although he always performed work for Protech as an employee and never requested to be paid as an independent contractor, Protech would sometimes classify him and other employees as independent contractors (Id., ¶ 10). Mr. Hudson also states that he and other security officers were required to follow Protech's rules, policies and procedures, and if they did not, they would be disciplined, including having time "docked" or deducted from their time sheets (Id., ¶ 7).

         In addition, based on a sampling of pay periods culled from the approximately 11, 000 payroll records Protech produced for the time period 2013 to April 2016 (PL's Mem. at 3-4 n.l), plaintiff offers summary tables indicating that Protech's security officer employees "worked sixty, seventy, sometimes eighty hours in a single week and despite these oppressive hours, according to Defendants' own payroll records, the security officers were not paid overtime wages for such work" (doc. # 44: PL's Reply at 2; see PL's Mem., Ex. 6: Payroll Tables). Thus, plaintiff contends that this exhibit shows that Protech routinely and continuously violated the FLSA (PL's Mem. at 3-4 n.l). Significantly, defendants do not question the correctness of the summary tables offered by plaintiff.


         Protech contends that the affidavit and payroll evidence are not enough, at the conditional certification stage, to show that its policies violated the law or that Mr. Hudson was similarly situated to other security officer employees (doc. # 42: Defs.' Resp. to PL's Mot. for CondT Cert. at 3-4). Protech argues that in order to obtain conditional certification, plaintiff had to submit additional evidence from other employees, written policies, and/or deposition testimony (Id.). We disagree.

         Initially, Protech objects to plaintiffs affidavit because it does not "suggest that he has personal knowledge of the allegations" (Defs.' Resp. at 2).[2] In response to Protech's objection, plaintiff attached to his reply brief an "amended" affidavit from Mr. Hudson that is identical to his original affidavit, except that it adds the paragraph: "I am over eighteen years old, of sound mind and the statements made herein are true, correct and based entirely upon my own personal knowledge, my experiences and my interactions with Defendant Keith Benson, Protech management and other security officers" (PL's Reply, Ex. 1: Hudson Am. Aff., ¶ 2). Contrary to Protech's contention, Mr. Hudson obviously has personal knowledge of his own experience as a Protech employee.

         That said, we agree that even with the amendment, Mr. Hudson's basis for personal knowledge of the activities and experiences of "other security officers" is less clear. See, e.g., Howard v. Securitas Sec. Servs., USA Inc., No. 08 C 2746, 2009 WL 140126, at *4 (N.D. 111. Jan. 20, 2009) (determining that a security guard without management or human resources experience had no basis for personal knowledge of the activities and experiences of his coworkers). Nevertheless, the payroll exhibit, combined with Mr. Hudson's affidavit attesting to his own experiences and Protech's answers to plaintiffs complaint, are sufficient to establish a "modest factual ...

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