United States District Court, N.D. Illinois, Eastern Division
DAVID LIEBERMAN, on behalf of himself, and all other plaintiffs similarly situated, known and unknown, Plaintiff,
ALTOUNION CONSTRUCTION, INC., an Illinois Corporation and TODD ALTOUNION, individually, Defendants.
MEMORANDUM OPINION AND ORDER
M. ROWLAND United States District Judge.
the Court is Plaintiff's motion for step-one notice of
his Fair Labor Standards Act collective action . For the
reasons set forth below, Plaintiff's motion for step-one
notice  is granted with the modifications specified
David Lieberman (“Lieberman”) brings this
putative collective action against his former employer,
Defendant Altounion Construction, Inc.
(“Altounion”) and Altounion owner and President,
Todd Altounion (collectively “Defendants”), for
alleged violations the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201, et seq.
Defendant Altounion is a construction business in Lake Bluff,
Illinois. (Am. Compl., Dkt. 26). Lieberman claims that he and
other similarly situated Altounion hourly employees regularly
worked in excess of forty (40) hours in a workweek without
pay at a rate of time and one-half. (Id. ¶ 13).
Lieberman seeks authorization to send notice to Altounion
current and former hourly employees that were employed by
Defendants at any time after February 2016.
Plaintiff Lieberman was employed by Defendants at their Lake
Bluff facility as a millworker from approximately July 2016
to December 2018. (Lieberman Decl. (Dkt. 41-6, Exh. F) ¶
2). According to his declaration, during the entirety of his
employment, he was paid hourly, even though he worked in
excess of 40 hours per week during many weeks of his
employment at Altounion. (Id. ¶¶ 3-4).
Based on his knowledge from his own experience and from
viewing payroll records produced by Defendants, Lieberman
stated that Defendants had “a common practice of paying
all hourly employees only their straight time hourly rates of
pay for all hours worked in a workweek, including
overtime-eligible hours in excess of 40.” (Id.
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)).
Because FLSA lawsuits cannot proceed as class actions,
“they are opt-in representative actions."
Schaefer v. Walker Bros. Enterprises, 829 F.3d 551,
553 (7th Cir. 2016). District courts have “wide
discretion” in deciding how such collective actions
proceed. Alvarez, 605 F.3d at 449 (citing
Hoffman-LaRoche v. Sperling, 493 U.S. 165, 170-72
District, courts employ a two-step process. At step one, the
conditional certification stage, a plaintiff “must show
that there are similarly situated employees who are potential
claimants.” See Russell v. Ill. Bell. Tel.
Co., 575 F.Supp.2d. 930, 933 (N.D. Ill. 2008). "The
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).
Plaintiff's burden is to 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." Russell, 575 F.Supp.2d.
at 933; Bergman v. Kindred Healthcare, Inc., 949
F.Supp.2d 852, 855 (N.D. Ill. 2013) (requiring "modest
factual showing of common, unlawful conduct and  some
indication of harm to employees."). To decide whether
plaintiffs meet this burden, courts employ a “lenient
interpretation” of the term “similarly
situated”. Ivery v. RMH Franchise Corp., 280
F.Supp.3d 1121, 1133 (N.D. Ill. 2017).
the modest factual showing standard, 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, 2016
U.S. Dist. LEXIS 177177, at *1 (N.D. Ill.Dec. 22, 2016)
(internal quotations omitted). However, conditional
certification is not automatic and to proceed as a collective
action, plaintiffs 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 U.S. Dist. LEXIS 33703, at *2 (N.D. Ill. Mar. 16, 2016)
(citations omitted). If plaintiffs can show that other
potential plaintiffs are similarly situated, the court may
conditionally certify the case as a collective action and
allow notice of the case to be sent to similarly situated
employees who may then opt in as plaintiffs. Grosscup v.
KPW Mgmt., 261 F.Supp.3d 867, 870 (N.D. Ill. 2017).
the merits are not decided at this stage-the 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). The second step
of the two-step process is more stringent; "following
the completion of the opt-in process and further discovery,
the defendant may ask the Court to 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."
Russell, 575 F.Supp.2d at 933 (internal quotations
and citations omitted).
hearing before this Court on October 7, 2019, defense counsel
stated that Defendants did not object to conditional
certification generally, but objected because they believed
the scope of the proposed class was too broad. The Court gave
Defendants ample time to file a response brief to articulate
the basis for their objection. (see Dkt. 24). No
response brief was filed nor did Defendants request any
extension. Therefore based on a review of Lieberman's
motion for conditional certification and the accompanying
attachments, applicable case law, as well as Local Rule 78.3,
the Court grants Lieberman's motion for conditional
certification subject to the modifications to the proposed
notice described below.
Modest Factual Showing Standard Met
Defendants objected at the hearing to the scope of the
proposed class, the Court finds Lieberman has met the
standard to show he and potential collective action members
are similarly situated. At this stage, the Court does not
need to resolve factual disputes or decide substantive
issues. See Larsen v. Clearchoice Mobility, Inc.,
2011 U.S. Dist. LEXIS 80899, at *1 (N.D. Ill. July 25, 2011).
At step two, “[d]iscovery will permit the
parties to show which putative class members, if any, are
exempt, and which are not.” Boltinghouse v. Abbott
Labs., Inc., 196 F.Supp.3d 838, 842 (N.D. Ill. 2016).
Now, the Court is “tasked only with determining whether
it can ...