United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M. Dow, Jr. United States District Judge.
the Court is Plaintiff's motion  for an order to
authorize notice to similarly situated persons pursuant to 29
U.S.C. § 216(b). For the reasons set forth below, the
motion  is granted in part and denied in part. Defendants
are ordered to submit the names and addresses of all
employees who between December 11, 2012 and present have been
subjected to Defendants' policy of classifying any or all
hours worked in excess of 40 hours as “ride
time.” Defendants are ordered to provide this
information to Plaintiff by June 11, 2018. This case is set
for further status hearing on June 21, 2018 at 9 a.m.
Big Top & Party Rentals, LLC, and its owner, Defendant
Marlene Leonard, “provide tents, tables, chairs,
lighting, staging, dance floors, and other equipment to
clients for events such as weddings and festivals” in
Illinois, Wisconsin, and Indiana. [42, at 2; 47, at 2.].
Plaintiff Jose Pizano was one of Defendants' regular
seasonal employees, working from May to October each year
from 2012 through 2015. [47, at 2.] According to Plaintiff,
he and other employees would “go to Defendants'
worksite each day, load Defendants' trucks with the
necessary tents, and other supplies for the day, and travel
to the clients' sites to install the tents as well as any
other requested equipment.” [42, at 2.]
alleges that he regularly worked in excess of forty hours a
week, but was not paid overtime compensation for all of this
time. [1, ¶¶ 10-11.] Specifically, he was not
compensated for work that includes “time loading trucks
at the beginning of the day, unloading trucks and the end of
the day, and traveling from job to job and installing
tents.” [42, at 2.] He alleges that he and other
workers would “punch in each day before beginning to
load Defendant's trucks and punched out at the end of
each day after unloading the truck and cleaning off
tools.” Id. at 2-3.
dispute these facts (and, obviously, any liability). They
argue that Defendants had three crews, two of which travel to
various sites in Illinois, Wisconsin, and Indiana, while the
third remains at Defendants' warehouse. [47, at 3.]
According to Defendants, the third crew has exclusive
responsibility for loading and unloading the trucks.
Id. The other two crews are given a
“ride” to the first morning job site in a fully
loaded company truck, and they start their work day only upon
arrival at the job site. Id. During their truck
ride, “almost all of the crew” make personal
phone calls, sleep, or snack. Id. at 4. “The
employees perform no work whatsoever prior to and after their
‘ride' to and from the first and last job
site.” Id. Nevertheless, Defendants pay these
workers at their regular rate for this “ride
time.” Id. at 1, 3.
April 12, 2017, the Court ruled that, as a matter of law,
ride time could be compensable under the Fair Labor Standards
Act, 29 U.S.C. § 201 et seq., as amended
(“FLSA”), and the Illinois Minimum Wage Law, 820
ILSC 105/1, et seq. (“IMWL”). [50.] On October
22, 2017, Plaintiff filed a motion  to authorize notice
to similarly persons pursuant to 29 U.S.C. § 216(b),
which is currently pending before the Court.
to the FLSA, “employees are entitled to overtime pay
(i.e., one and one-half times the regular rate) for
any hours worked in excess of forty hours per week, unless
they come within one of the various exemptions set forth in
the Act.” Schaefer-LaRose v. Eli Lilly &
Co., 679 F.3d 560, 572 (7th Cir. 2012) (citing 29 U.S.C.
§§ 207, 213). Section 216(b) of the FLSA
“gives employees the right to bring their FLSA claims
through a ‘collective action' on behalf of
themselves and other ‘similarly situated'
employees.” Alvarez v. City of Chi., 605 F.3d
445, 448 (7th Cir. 2010) (citing 29 U.S.C. § 216(b)
(2006)); see Schaefer v. Walker Bros. Enterprises,
829 F.3d 551, 553 (7th Cir. 2016) (“Suits under the
Fair Labor Standards Act cannot proceed as class actions.
Instead they are opt-in representative actions.”).
District courts have broad discretion in managing collective
actions under the FLSA. Alvarez, 605 F.3d at 449.
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 action.” Ervin v. OS Rest.
Servs., Inc., 632 F.3d 971, 974 (7th Cir. 2011).
“Neither Congress nor the Seventh Circuit has specified
the procedure courts should use to decide FLSA certification
and notice issues, but collective FLSA actions in this
district generally proceed under a two-step process.”
Grosscup v. KPW Mgmt., Inc., 2017 WL 2461538, at *1
(N.D. Ill. June 7, 2017) (citations and quotations omitted).
case is at step one, the conditional certification stage.
“The purpose of conditional certification is to
determine the size and contour of the group of employees who
may become collective members and whether these potential
members are ‘similarly situated.'” Nicks
v. Koch Meat Co., 265 F.Supp.3d 841, 848 (N.D. Ill.
2017) (citing 7B Charles A. Wright et al., Federal Prac.
& Proc. § 1807); see also Gomez v. PNC Bank,
Nat'l Assoc., 306 F.R.D. 156, 173 (N.D. Ill. 2014);
Ervin, 632 F.3d at 974 (“The conditional
approval process is [ ] used by district courts to establish
whether potential plaintiffs * * * should be sent a notice of
their eligibility to participate and given the opportunity to
opt in to the collective action.”).
this first stage, the plaintiffs have the burden of showing
that other potential claimants are similarly situated by
making 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.'” Nicks, 265 F.Supp.3d at 849
(citations omitted). “Courts use a ‘lenient
interpretation' of the term ‘similarly
situated' in deciding whether plaintiffs meet this
burden.” Grosscup, 2017 WL 2461538, at *1
(quoting Salmans v. Byron Udell & Assocs., Inc.,
2013 WL 707992, at *2 (N.D. Ill. Feb. 26, 2013)). To satisfy
the modest factual showing for issuing notice pursuant to
§ 216(b), a plaintiff “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, 2016 WL 7409909, at *1
(N.D. Ill.Dec. 22, 2016) (internal quotations omitted).
However, conditional certification is not automatic and to
proceed as a collective action, a plaintiff must
“demonstrate similarity among the situations of each
plaintiff beyond simply claiming that the FLSA has been
violated; an identifiable factual nexus that binds the
plaintiffs together as victims of a particular violation of
the overtime laws generally must be present.”
Briggs v. PNC Fin. Servs. Grp., Inc., 2016 WL
1043429, at *2 (N.D. Ill. Mar. 16, 2016) (citations omitted).
If a plaintiff is able to show that other potential
plaintiffs are similarly situated, courts may conditionally
certify the case as a collective action and allow the
plaintiff to send notice of the case to similarly situated
employees who may then opt in as plaintiffs.
Grosscup, 2017 WL 2461538, at *1; Salmans,
2013 WL 707992, at *2.
initial stage, “[t]he court does not make merits
determinations, weigh evidence, determine credibility, or
specifically consider opposing evidence presented by a
defendant.” Bergman, 949 F.Supp.2d at 855-56
(citation omitted); see also Larsen v. Clearchoice
Mobility, Inc., 2011 WL 3047484, at *1 (N.D. Ill. July
25, 2011) (“[T]he court does not resolve factual
disputes or decide substantive issues going to the
merits.”); Nehmelman v. Penn Nat'l Gaming,
Inc., 822 F.Supp.2d 745, 751 (N.D. Ill. 2011)
(“[T]he court does not consider the merits of a
plaintiff's claims, or witness credibility”).
second step, which is not at issue here, is more stringent
and occurs after the opt-in and discovery process has been
completed. Nicks, 265 F.Supp.3d at 849. “Once
the court has determined which employees will be part of the
collective action, 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. If the
court finds insufficient similarities during the second step,
it may revoke conditional certification or divide the class
into subclasses.” Id. (quotations and
contend that the Court should not allow for any notice to be
issued. Defendants recognize that “Plaintiff need only
make a reasonable factual showing that members of the
proposed collective action are similarly situated, ”
but argue that the Court should deny Plaintiff's request
to issue a notice in this case because the requisite factual
showing is typically supported by discovery but discovery has
not taken place in this case “due to the de minimus
[sic] value of Plaintiff's claim[.]” [61, at 7.]
This contention is puzzling, as the Court has not limited
discovery in this case due to the claimed de minimus
value of Plaintiff's claim. In fact, some discovery has
taken place. Defendants have produced payroll records
indicating that Defendants categorized any time that
Plaintiff worked over 80 hours, but under 100 hours, as
“ride time, ” which was paid at the regular rate.
[65-1;65-2.] Defendants also produced redacted payroll
records of other employees indicating that other employees
were subject to the same method of categorizing hours.
[65-3.] Indeed, Defendants have indicated that nine other
employees were compensated for “ride time” in a
similar manner as Plaintiff was compensated. [61, at 5.] ...