United States District Court, N.D. Illinois, Eastern Division
SANTIAGO GONZALEZ, individually and on behalf of other employees similarly situated, Plaintiff,
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
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]. 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
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.
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
 . . . 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 . . .  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.
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.
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.
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.
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].
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.
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.
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  hours in
any  week, " which would exclude those who worked
more than 37 hours; (3) it refers to " years prior to
the filing of this lawsuit" without specifying when the
lawsuit was filed; 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."
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.
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.
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
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