Bergman v. Kindred Healthcare, Inc.
949 F. Supp. 2d 852
N.D. Ill.2013Background
- This is a nationwide FLSA collective action and Illinois state-law putative class action concerning automatic 30-minute meal deductions for non-exempt employees.
- Court has original jurisdiction over FLSA claims; CAFA jurisdiction discussed but likely excluded; supplemental jurisdiction noted.
- Plaintiffs Bergman, Cason, and Smith, with others, allege missed/undpaid overtime due to meal-deduction policy at multiple Kindred facilities.
- Hospital Division nurses and staff were alleged to be most affected prior to May 2010; after May 2010, all hourly employees clock out/in for meals.
- Defendants’ handbook and auto-deduct policy, and statements about missed meal forms, are central to alleged unlawful practice.
- Motion before the court concerns conditional certification of FLSA collective and class certification of IMWL/IWPCA claims; equitable tolling request also briefed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are plaintiffs entitled to conditional certification for a FLSA collective? | Bergman argues common unlawful conduct via auto-deduct policy warrants notice. | Kindred contends policy is lawful or requires more rigorous proof. | Granted in part; limited to Hospital Division patient-care employees with potential opt-ins. |
| Should notice be limited to a subset of employees? | Notice should reach all potential opt-ins across facilities. | Limitation is appropriate given patient-care context and record evidence. | Limited to Hospital Division employees directly engaged in patient care. |
| Should equitable tolling apply to the FLSA opt-ins? | Equity supports tolling due to extensive discovery delay. | Tolling should not exceed ordinary delays; limited justification. | Equitable tolling granted in part; tolling from June 30, 2011 to the date of ruling. |
| Does CAFA jurisdiction preclude or supplement the action? | CAFA jurisdiction applies because of class size/value. | CAFA exclusion applies due to Illinois-focused injuries and citizenship; may still have supplemental jurisdiction. | CAFA exclusion applies; court retains supplemental jurisdiction over state claims. |
Key Cases Cited
- Woods v. N.Y. Life Ins. Co., 686 F.2d 578 (7th Cir. 1982) (FLSA collective action may proceed for similarly situated employees)
- Alvarez v. City of Chicago, 605 F.3d 445 (7th Cir. 2010) (policies and discovery considerations in conditional certification)
- Kellar v. Summit Seating Inc., 664 F.3d 169 (7th Cir. 2011) (employer must exercise control and pay for work performed when permitted)
- Creely v. HCR ManorCare, Inc., 789 F.Supp.2d 819 (N.D. Ohio 2011) (discusses standards for conditional certification in healthcare auto-deduct cases)
- Pacheco v. Boar’s Head Provisions Co., 671 F.Supp.2d 957 (W.D. Mich. 2009) (discusses evidentiary standards shifting with discovery in certification)