United States District Court, N.D. Illinois, Eastern Division
DER-YEGHIAYAN, District Judge
matter is before the court on Plaintiffs' motion for
conditional certification and for approval of class notice.
For the reasons stated below, the motion for conditional
certification is granted and the motion for approval of class
notice is granted.
allegedly worked for Defendants at call centers as a call
center representative (CCR) performing customer retention
activities. Plaintiffs allegedly were required to work before
their shifts, during meal breaks, and after their shifts and
were not compensated for such work based on Defendants'
standard policies. Plaintiffs claim that they were required
to turn on equipment and boot up software programs before
their scheduled shift. Plaintiffs also contend that they were
required to perform work during meal breaks and perform work
after shifts such as completing calls. Defendants also
allegedly rounded down less than eight minutes when
calculating time worked. As a result of Defendants'
policies, Plaintiffs were allegedly deprived of significant
overtime owed to them. Plaintiffs include in their amended
complaint claims alleging the failure to pay overtime in
violation of the Fair Labor Standards Act (FLSA), 29 U.S.C.
§ 201 et seq. (Count I), and claims brought
under the Illinois Minimum Wage Law, 820 ILCS 105/1 et
seq. (Count II). Plaintiffs now move for conditional
certification of a class in this action.
FLSA specifies that employees have “the right to bring
their FLSA claims through a ‘collective action' on
behalf of themselves and other ‘similarly situated'
employees.” Alvarez v. City of Chicago, 605
F.3d 445, 448 (7th Cir. 2010)(quoting in part 29 U.S.C.
§ 216(b)). A collective action brought under the FLSA
“is similar to, but distinct from, the typical class
action brought pursuant to” Federal Rule of Civil
Procedure 23 (Rule 23). Id. The main difference
between a FLSA collective action and a Rule 23 class action
“is that 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.” Id.
FLSA does not specify the process by which a court should
determine whether plaintiffs can pursue FLSA claims as a
collective action, and district courts have discretion in
determining the appropriate process. See Hoffmann-La
Roche Inc. v. Sperling, 493 U.S. 165, 169-70
(1989)(holding that “district courts have discretion,
in appropriate cases, to implement 29 U.S.C. § 216(b) .
. . by facilitating notice to potential plaintiffs”);
Alvarez, 605 F.3d at 449 (stating that “[a]
district court has wide discretion to manage collective
actions”). As to the process for determining whether a
FLSA lawsuit should proceed as a collective action, the
majority of district courts in this district have followed a
two-step process. Jirak v. Abbott Laboratories,
Inc., 566 F.Supp.2d 845, 847-48 (N.D. Ill. 2008). The
court also notes that the Seventh Circuit has recognized that
district courts employ the two-step process and has not
indicated that the process was improper. See, e.g., Ervin
v. OS Restaurant Services, Inc., 632 F.3d 971, 974 (7th
Cir. 2011)(explaining that “[t]he conditional approval
process is a mechanism used by district courts to establish
whether potential plaintiffs in the FLSA collective action
should be sent a notice of their eligibility to participate
and given the opportunity to opt in to the collective
initial step of the certification process, the plaintiffs are
required “only . . . to make a minimal showing that
others in the potential class are similarly situated.”
Jirak, 566 F.Supp.2d at 847. If the
plaintiff meets that “minimal showing, the class is
conditionally certified and notice is sent to potential class
members, giving them an opportunity to opt in.”
Id.; Perez v. Comcast, 2011 WL 5979769, at
*1 (N.D. Ill. 2011)(stating that “[f]irst, the court
considers whether to conditionally certify a class” and
that “[t]o obtain this relief, a plaintiff must 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”)(internal
quotations omitted)(quoting Hundt v. DirectSat USA,
LLC, 2010 WL 2079585, at *2 (N.D. Ill. 2010)).
second step of the process, “which occurs after the
parties have engaged in discovery and the opt-in process is
completed, the court's inquiry is more stringent”
and “the Court must reevaluate the conditional
certification to determine whether there is sufficient
similarity between the named and opt-in plaintiffs to allow
the matter to proceed to trial on a collective basis.”
Jirak, 566 F.Supp.2d at 847. At the second
step, the court must also determine: “(1) whether the
plaintiffs share similar or disparate employment settings;
(2) whether affirmative defenses raised by the defendant
would have to be individually applied to each plaintiff; and
(3) any fairness and procedural concerns.” Id.
seek to conditionally certify a class consisting of all
individuals who were and/or are currently employed by
Defendants, their subsidiaries, affiliates, predecessors,
and/or successors as non-exempt call center employees or
other similarly titled positions at any time during the
relevant statute of limitations who worked at least forty
hours per week and whose actual time worked was rounded to
their detriment. Plaintiffs also have revised the class
definition to include a pre-shift subclass, a meal break
subclass, and two post-shift subclasses.
argue that some of the CCRs worked at call centers that
closed several years ago and that the claims for such CCRs
would be time-barred. Plaintiffs concede that such claims
would be time-barred. However, as Plaintiffs correctly point
out, there are ample other putative class members whose
claims would not be time-barred. In addition, if such
CCR's with time-barred claims subsequently went to work
for Defendants at another call center within the statute of
limitations period, their claims would not be time-barred.
Thus, the fact that certain claims may be time-barred does
not prevent the conditional certification of a class in this
argue that the evidence shows that certain putative class
members worked for entities that are not named as Defendants
in this case. However, under the FLSA an employee can have
more than one employer. Moldenhauer v. Tazewell-Pekin
Consol. Commc'ns Ctr., 536 F.3d 640, 644 (7th Cir.
2008). Plaintiffs make clear in response to the instant
motion that their theory in this case is that certain
putative class members had a joint employer. Plaintiffs also
allege that the named Defendants had control over the
putative class members such that they would be considered an
employer of the class members. (A Compl. Par. 8-15, 41-48).
Defendants cannot dictate to Plaintiffs the parameters of
Plaintiffs' claims nor challenge the merits ...