344 F. Supp. 3d 1005
E.D. Wis.2018Background
- Plaintiff John Weninger, a non-exempt hourly Training Coordinator at General Mills' Milwaukee production facility, sued under the FLSA and FMLA and sought conditional certification of an FLSA collective action challenging General Mills' treatment of certain bonuses.
- Two contested bonus types: a biannual "Wage Incentive Bonus" (productivity-based percentage of "eligible earnings") and a "Lump Sum Merit Bonus" (allegedly a market-adjustment percentage of "eligible earnings").
- General Mills did not include the Wage Incentive Bonus (or, according to plaintiff, the Lump Sum Merit Bonus) in employees' regular rates when computing overtime.
- General Mills contended the bonuses were permissible percentage bonuses under DOL regulation (29 C.F.R. § 778.210) and thus did not require recomputation into the regular rate; Weninger disputed that the company used "total earnings" as required.
- The Court found unresolved factual gaps about the Lump Sum Merit Bonus and denied defendant's partial summary judgment without prejudice under Rule 56(d), granted conditional certification of the collective action, and set notice/opt-in procedures while permitting further discovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conditional certification of an FLSA collective is appropriate | Weninger: others were similarly situated because non-exempt production employees were subject to the same failure to include the Wage Incentive Bonus in regular rate | General Mills: bonus practices varied by facility and many facilities used different or no programs | Conditional certification granted — plaintiff met the low "similarly situated" showing; factual variations reserved for later stage |
| Whether the Wage Incentive and/or Lump Sum Merit Bonuses must be recomputed into the regular rate (or can be treated as percentage bonuses under DOL rule) | Weninger: bonuses are nondiscretionary remuneration and must be included in regular rate; General Mills' method does not use "total earnings" so § 778.210 does not apply | General Mills: bonuses are permissible percentage bonuses calculated on eligible earnings consistent with § 778.210 and thus no recomputation needed | Court declined to resolve merits now; recognized § 778.210 as valid but found material factual gaps about the Lump Sum Merit Bonus that preclude summary judgment |
| Appropriateness of summary judgment for defendant on FLSA claim | Weninger: discovery incomplete re: Lump Sum Merit Bonus; cannot oppose on present record | General Mills: argued adequacy of its evidence and legal defense; urged summary judgment | Summary judgment denied without prejudice; Rule 56(d) relief granted to allow further discovery |
| Notice, scope, and administration of collective action opt-in | Weninger: proposed class definition (hourly non-exempt production employees who received Wage Incentive Bonus 3/2/2015–3/2/2018), 45-day opt-in, mailing, posting, and additional contact info if mail returned; sought court-approved notice form and posting | General Mills: argued many facilities used different plans, objected to disclosure of personal contact info, posting, and asked for third‑party administrator and notice language stressing right to consult other counsel | Court approved conditional certification with modifications: ordered production of names/last known addresses, mailing and posting of amended notice, rejected intrusive contact data and third‑party administrator, and required notice to state recipients may consult counsel of their choosing |
Key Cases Cited
- Woods v. N.Y. Life Ins. Co., 686 F.2d 578 (7th Cir.) (procedural framework for conditional certification distinguished from Rule 23 class actions)
- Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095 (10th Cir.) (standard that plaintiff need only make a minimal showing that putative class members are similarly situated)
- Jirak v. Abbott Labs., Inc., 566 F. Supp. 2d 845 (N.D. Ill.) (procedures and timing for conditional certification and notice)
- Skidmore v. Swift & Co., 323 U.S. 134 (agency interpretive rules entitled to deference under Skidmore)
- Brock v. Two R Drilling Co., Inc., 789 F.2d 1177 (5th Cir.) (discussion of percentage bonuses and DOL regulations)
- Bridge v. New Holland Logansport, Inc., 815 F.3d 356 (7th Cir.) (summary judgment standards and construing facts in nonmovant's favor)