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Gonzalez v. J. Salerno & Son, Inc.

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

May 18, 2017

SANTIAGO GONZALEZ, individually and on behalf of other employees similarly situated, Plaintiff,
v.
J. SALERNO & SON, INC., d/b/a SALERNO'S; JOSEPH SALERNO; MARIA SALERNO; PETER LIA; and VICTORIA LIA, Defendants.

          MEMORANDUM OPINION AND ORDER

          Jeffrey T. Gilbert Magistrate Judge

         Plaintiff Santiago Gonzalez ("Plaintiff) has moved to conditionally certify a collective action in this case brought under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (the "FLSA"), and for authorization to issue notice to the putative members of the conditionally certified collective action. Plaintiffs Motion for Class Certification and Approval of Notice pursuant to 29 U.S.C. § 216(b) ("Plaintiffs Motion"), [ECF No. 36].[1] Defendants J. Salerno & Son, Inc., Joseph Salerno, Maria Salerno, Peter Lia, and Victoria Lia (collectively, "Defendants") oppose the conditional certification of a collective action and some of Plaintiffs proposals regarding the issuance of notice. Defendants' Response to Plaintiffs Motion for Conditional Certification pursuant to 29 U.S.C. § 216(b) ("Defendants' Response"), [ECF No. 46], For the reasons stated below, Plaintiffs Motion [ECF No. 36] is granted in part and denied in part.

         I. BACKGROUND

         Plaintiff worked as a cook from 1993 until January 30, 2016, at a restaurant allegedly owned and operated by Defendants. First Amended Complaint, [ECF No. 22], ¶ 25. Plaintiff says Defendants scheduled him to work in excess of 40 hours "in almost every individual work week[]." Id. ¶ 26. Plaintiff contends that, consistent with this schedule, he actually worked more than 40 hours "in almost every individual work week[]." Id. ¶27. According to Plaintiff, "in practically each and every work week ... his paycheck reflected that he worked only" 40 hours. Id. ¶ 30. Plaintiff claims that, instead of including overtime hours on his paycheck, Defendants "would pay him cash for" the overtime that he worked. Id.

         Plaintiff alleges Defendants violated the FLSA by failing to compensate him "at a rate of at least [1.5] .. . times [his] regular hourly rate of pay for all hours worked in excess of [40] . . . hours in [his] individual work weeks." Id. ¶ 37. Plaintiff identifies three specific practices that supposedly led to the underpayment of his overtime wages. See Plaintiffs Motion, [ECF No. 36 at 1], Plaintiff alleges Defendants "failed to maintain the time clock used by employees to track their time, and intentionally allowed it to reflect that for every . . . [5.5] hours worked, the clock would only report the employee worked for . . . [5] hours." First Amended Complaint, [ECF No. 22], ¶ 2. Plaintiff contends Defendants further undercounted the amount of overtime he worked because they "deducted time and money for regular meals eaten while employees were on the job." Id. ¶ 3; see also Plaintiffs Motion, [ECF No. 36 at 1] (stating Defendants did not give him "time off for lunch and for breaks"). Finally, Plaintiff says Defendants' cash payments for overtime hours were at his regular rate, not 1.5 times his regular rate. First Amended Complaint, [ECF No. 22], ¶ 30. Plaintiff alleges other employees who worked for Defendants were subject to these same FLSA violations. Id. ¶¶ 28, 35-40.

         II. DISCUSSION

         This matter is now before the Court on Plaintiffs Motion for Class Certification and Approval of Notice pursuant to 29 U.S.C. § 216(b), [ECF No. 36]. In his motion, Plaintiff asks the Court to conditionally certify a collective action composed of "all employees, past or present, who's (sic) payroll records show that they worked thirty-seven (37) hours in any one (1) week during the three (3) years prior to the filing of this lawsuit" and "anyone who was a cook during the three (3) years prior to the filing of this lawsuit." Plaintiffs Reply in Support of Plaintiff s Motion for Class Certification and Approval of Notice pursuant to 29 U.S.C. § 216(b) ("Plaintiffs Reply"), [ECF No. 47 at 2]. Plaintiff also asks the Court to authorize the issuance of notice to the putative members of the collective action. Id. at 3.

         A. Conditional Certification

         "Under Section 216(b) of the FLSA, employees may bring a collective action on behalf of themselves and other 'similarly situated' employees against employers who violate the Act's minimum wage or overtime provisions." Smallwood v. Illinois Bell Tel. Co., 710 F.Supp.2d 746, 750 (N.D. Ill. 2010). A collective action proceeds in two steps. Rottman v. Old Second Bancorp, Inc., 735 F.Supp.2d 988, 990 (N.D. Ill. 2010). At step one, the court decides whether to conditionally certify a collective action. Smith v. Family Video Movie Club, Inc., 2015 WL 1542649, at *2 (N.D. Ill. Mar. 31, 2015). That is the issue now before the Court. To establish that conditional certification is appropriate, the plaintiff must make "a modest factual showing" that similarly situated employees and he "together were victims of a common policy or plan that violated the law." Hudgins v. Total Quality Logistics, LLC, 2016 WL 7426135, at *3 (N.D. Ill.Dec. 23, 2016) (quoting Terry v. TMX Fin. LLC, 2014 WL 2066713, at *2 (N.D. Ill. May 19, 2014)). Courts apply the similarly situated requirement "leniently, " Rottman v. Old Second Bancorp, Inc., 735 F.Supp.2d 988, 990 (N.D. Ill. 2010), and "typically" conditionally certify a representative class, Solsol v. Scrub, Inc., 2015 WL 1943888, at *2 (N.D. Ill. Apr. 27, 2015). If the plaintiff carries his burden at step one, then the court "the court will conditionally certify the collective action and authorize the plaintiff to give notice to putative members, " Hudgins, 2016 WL 7426135, at *3.

         In his opening brief in support of conditional certification, Plaintiff did not clearly identify which employees he considered to be similarly situated and, thus, should be included in the collective action. Instead, Plaintiff mostly referred to "similarly situated" employees and asked for permission to send notice "to all current and former laborers and drivers." Plaintiffs Motion, [ECF No. 36 at 2-3, 8]. Defendants pointed out this problem in their response brief. Defendants' Response, [ECF No. 46 at 2-3]. That prompted Plaintiff to remedy his error in his reply brief. In that filing, Plaintiff described two classes of employees who he believes are similarly situated. Plaintiffs Reply, [ECF No. 47 at 2], The first is "all employees, past or present, [whose] payroll records show that they worked thirty-seven (37) hours in any one (1) week during the three (3) years prior to the filing of this lawsuit." Id. The second is "anyone who was a cook during the three (3) years prior to the filing of this lawsuit." Id.

         Defendants' only argument against conditional certification is that Plaintiff has not made the required modest factual showing that the employees Plaintiff wants included in the collective action are similarly situated. But Defendants' opposition to certification of a collective action in this case is perfunctory, at best. Defendants' arguments against certification take up less than three pages of their response brief, including the case caption and the title of the brief. The rest of the five-page brief addresses Defendants' issues with Plaintiffs proposed notice to Defendants' employees. Defendants' Response, [ECF No. 46].

         Defendants do not contend that Plaintiffs characterization of their payroll policies and practices is inaccurate, or that they had different overtime compensation practices and policies for different classes of employees. Instead, Defendants claim Plaintiff has failed to carry his burden in two ways. First, Defendants contend some of their employees-presumably including some of those who are encompassed by Plaintiffs definition of the putative collective action class-have different "job title[s]" and perform different tasks. Defendants' Response, [ECF No. 46 at 3]. Such differences are not sufficient to defeat conditional certification. "[P]laintiffs can be similarly situated for purposes of the FLSA" even when "there are distinctions in their job titles, functions, or pay." Jirak v. Abbott Labs., Inc., 566 F.Supp.2d 845, 849 (N.D. Ill. 2008). The determination of whether employees are similarly situated does not focus on their day-today work activities. Smallwood, 710 F.Supp.2d at 751. Instead, the inquiry focuses on whether the employees '"together were victims of a common policy or plan that violated the law.'" Id. at 752 (quoting Flores v. Lifeway Foods, 289 F.Supp.2d 1042, 1045 (N.D. Ill. Oct. 30, 2003)). "[Arguments about dissimilarities in the class are more appropriate for step two of this process after discovery, rather than at this initial certification stage." Frebes v. Mask Restaurants, LLC, 2014 WL 1848461, at *2-3 (N.D. Ill. May 8, 2014). Defendants do not really take issue with Plaintiffs common policy or plan contention.

         Second, Defendants take issue with Plaintiffs failure in his initial brief to restrict the collective action to employees who worked similar total hours. Defendants' Response, [ECF No. 46 at 3], The Court understands this argument to be based on the fact that about half of Defendants' employees were part-time workers who presumably were not eligible for overtime and, thus, were not subject to the policies and practices that Plaintiff alleges violated the FLSA. See Plaintiffs Motion, [ECF No. 36 at 2] ("On information and belief, approximately half of the employees are full time.")- Plaintiffs description of the proposed collective action in his reply brief addresses this total hours issue. As stated above, Plaintiffs proposed collective action includes two groups. The first consists of those who worked 37 hours (or more, presumably) in a given week. In light of Plaintiffs theory that Defendants undercounted the number of overtime hours that employees worked, Defendant's objection is not meritorious with respect to this group. The second consists of cooks. Plaintiff represents that "the discovery indicates that persons who have the job title of 'cook'[] were full time employees." Plaintiffs Reply, [ECF No. 47 at 2]. Defendants have not stated otherwise. Thus, the Court is satisfied by Plaintiffs modest showing that the employees encompassed by his proposed collective action definition are similarly situated with respect to hours worked. Again, Defendants' challenge to Plaintiffs contention in this regard is no more than perfunctory.

         For all of these reasons, the Court finds Plaintiff has carried his burden at step one of the collective action proceeding. The Court, however, has identified various problems with Plaintiffs proposed definition of the proposed collective action, including that (1) it refers to "employees" and "cooks" without specifying who their employer is; (2) it refers to employees who "worked [37] hours in any [1] week, " which would exclude those who worked more than 37 hours; (3) it refers to "[3] years prior to the filing of this lawsuit" without specifying when the lawsuit was filed[2]; and (4) it refers to "anyone who was a cook, " which would include employees who worked as a cook for even just one day. To address these and other grammatical issues, the Court will conditionally certify a collective action consisting of: "All current and former employees of J. Salerno & Sons, Inc. d/b/a Salerno's (1) whose payroll records show they worked 37 or more hours in any one week since May 10, 2013, or (2) who worked as a cook for any one week since May 10, 2013."

         If any party objects to the Court's definition of the collective action, that party shall file a short memorandum on or before June 2, 2017, that (a) describes what aspect(s) of the definition are objectionable; (b) explains the basis for each objection; (c) supports each objection with authority, where appropriate; and (d) proposes an alternative definition that is otherwise consistent with this Memorandum Opinion and Order. If any party files an objection, then the other party may respond on or before June 12, 2017. The objecting party may reply on or before June 19, 2017.

         B. Notice

         Plaintiff asks the Court to authorize him to issue notice of this lawsuit to the members of the putative collective action. Plaintiff has a number of specific requests related (sometimes tangentially) to notice. Defendants object to only about half of them. The Court will address each in turn.

         1. Class definition.

         Plaintiff requests that the Court allow him to issue notice to those who fall within his proposed definition of the collective action. Plaintiffs Reply, [ECF No. 47 at 3], Defendants object to the extent Plaintiffs proposed definition includes those who are not similarly situated. Defendants' Response, [ECF No. 46 at 3-4], The Court has altered Plaintiffs proposed definition slightly, as discussed above, and will authorize notice only to those who are encompassed by the collective action that the Court has conditionally certified.

         2. Opt-in period.

         Plaintiff requests that putative members of the collective action be given 60 days to opt-in to this lawsuit. Plaintiffs Reply, [ECF No. 47 at 3]. Defendants do not address this issue. Therefore, the Court will permit a 60-day notice and opt-in period.

         3. ...


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