Nehmelman v. Penn National Gaming, Inc.
822 F. Supp. 2d 745
N.D. Ill.2011Background
- Plaintiff seeks unpaid overtime under FLSA and IMWL on behalf of herself and similarly situated Empress Games Department employees.
- Defendants Penn National Gaming, Inc. and Empress Casino Joliet contest overtime payment practices and oppose collective action notice.
- Plaintiff moves for conditional certification under 29 U.S.C. § 216(b) to issue notice to potential opt-ins.
- Dispute centers on four alleged policies: clocking in early, rounding of time, mandatory pre-shift meetings, and unpaid training.
- Court applies step-one analysis to determine if a common policy binds putative class and whether a factual nexus exists.
- Court grants conditional certification as to Empress and denies Empress’s strike of some declarations; notices and discovery procedures are set.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiff shows she and others are similarly situated at step one | Nehmelman shows a common policy affecting Dealers/Slot Reps. | Policies are not uniform or unlawful; declarations are inadequate. | Yes, Plaintiff shown to be similarly situated on four policies. |
| Whether the four policies create a common factual nexus binding the class | Policies affect all class members (clock-in, rounding, pre-shift meetings, training). | Significant individualized inquiries may predominate; gaps and anecdotes insufficient. | Yes, common issues predominate for clock-in/rounding and pre-shift training at this stage. |
| Whether notice and opt-in procedures should be approved and timed | Notice should be timely and comprehensive to facilitate opt-ins. | Tight opt-in period and restricted disclosures protect privacy and defenses. | Notice approved with 60-day opt-in; tolling limited; Clerk/referral and cost-concerns addressed. |
| Whether de minimis and gap-period arguments defeat certification | De minimis should not bar aggregate evaluation; gap periods show common activity. | Pre-shift activities may be de minimis or individualized; credibility not decided at step one. | Not dispositive; does not defeat conditional certification at step one. |
Key Cases Cited
- Alvarez v. City of Chicago, 605 F.3d 445 (7th Cir. 2010) (two-step analysis; modest factual showing suffices at step one)
- Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165 (Supreme Court 1989) (court may facilitate notice to implement opt-in collective actions)
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (Supreme Court 2011) (Dukes distinguishes Rule 23 class cert. from FLSA collective actions; focus on common answers)