OPINION AND ORDER
This is a nationwide collective action alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and an Illinois state law putative class action based on the application of an automatic 30-minute meal break deduction policy without ensuring that employees do not work through all or part of their meal break. This court has original jurisdiction over plaintiffs’ FLSA claims pursuant to 29 U.S.C. § 216(b) and 28 U.S.C. § 1331. Jurisdiction over the state law claims purportedly exists pursuant to the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d)(2), because the Illinois plaintiffs and members of the purported classes include citizens of a state different than one or more defendants and the matter in controversy exceeds the sum or value of $5,000,000. However, it would appear that jurisdiction under CAFA is excluded because more than two-thirds of the class members are citizens of Illinois,
Plaintiff Peter Bergman (“Bergman”) filed this action against Kindred Healthcare, Inc., Kindred Chicago Lakeshore, and Doe defendants 1-10. Subsequently two other actions (one filed in this court and one transferred from the Eastern District of Michigan) were consolidated with this action adding plaintiffs Bobbie Cason (“Cason”) and Lisa Smith (“Smith”). See Docket Entry 35, 45. Thereafter leave to file an amended complaint was granted adding defendant Kindred Healthcare Operating, Inc. (“KHOI”). As a result of the consolidations and amendments the defendants named in the Third Amended Complaint are Kindred Healthcare, Inc. (“KHI”); Kindred Healthcare Operating, Inc. (“KHOI”); Kindred Chicago Lake-shore (“Lakeshore”), a subsidiary of KHOI; and Kindred Hospitals East, LLC (“KHE”), which operates Kindred-Detroit. (For convenience the defendants will be referred to collectively as “Kindred.”) Mira Bhuiyan, Jennifer Cabulong, Kenya Hawk, Ben Philip Ginsberg, Amelia Wesseh, and Lisa Pigecella subsequently consented to join the case. See Docket Entry 75, 76, 80, 89, 103. In 2012, Cason withdrew her personal claims without prejudice.
Kindred has approximately 55,000 employees in the United States. On January 12, 2007, there were approximately 10,000 hourly employees working at 74 Kindred facilities in 23 different states. Kindred Healthcare is the largest diversified provider of post-acute care services in the United States. Entities owned by KHOI are divided into three divisions: the Hospital Division, the Nursing Center, and the Rehabilitation Division.
It is alleged that this action is filed on behalf of phlebotomists, business office managers, admission coordinators and officers, receptionists, secretaries, housekeepers, custodians, clerks, porters, registered nurses, licensed practical nurses, nurses’ aides, administrative assistants, anesthetists, clinicians, medical coders, medical underwriters, nurse case managers, nurse interns, nurse practitioners, practice supervisors, professional staff nurses, quality coordinators, resource pool nurses, respiratory therapists, senior research associates, operating room coordinators, surgical specialists, admission officers, student nurse technicians, trainers, transcriptionists, and all other non-exempt individuals who are employed at any of defendants’ facilities and subject to the automatic meal break deduction policy.
Because of the represented magnitude of this case and the expenses it will and could impose, plaintiffs were granted more than 11 months to take discovery with respect to the certification issue. They have taken three Rule 30(b)(6) depositions and served two sets of interrogatories and requests for the production of documents. Defendants have produced over 5,800 pages of documents. Three requests for the extension of discovery have been granted. See Docket Entry 26, 40, 57, 88. Defendants have submitted 34 declarations of putative class members who represent 25% of the employees at Lakeshore. The parties have also submitted opposing charts analyzing the information gathered. All of this has been accompanied by oversized briefs.
Plaintiffs propose an IMWL Class defined as:
All persons employed by Defendants at any of their Illinois facilities at any time since January 12, 2007, who worked in excess of forty (40) hours in any individual workweek, whose pay was subject to an automatic 30-minute meal period deduction even when they performed compensable work during the unpaid “meal break,” and who were not paid for all overtime worked, including such uncompensated meal break time, at a rate of one and one-half times their regular rate of pay.
Plaintiffs’ proposed IWPCA Class definition is:
All persons employed by Defendants at any of their Illinois facilities at any time since January 12, 2000, who worked fewer than forty (40) hours in any individual workweek, whose pay was subject to an automatic 30-minute meal period deduction even when they performed compensable work during the unpaid “meal break,” and who were not paid for all time worked, including such uncompensated meal break time.
Alternatively, plaintiffs move for certification of a common law unjust enrichment claim class.
Today’s ruling will only resolve FLSA collective action issues.
The FLSA provides that an action may be maintained against an employer by any one or more employees in behalf of himself and other employees similarly situated. Woods v. N.Y. Life Ins. Co.,
The certification of an FLSA collective action typically proceeds in two stages. The first stage, which is now before the court, involves conditionally certifying a class for notice purposes. There is a low standard of proof. Myers v. Hertz, Corp.,
Both sides’ evidentiary submissions will be considered in determining whether there is a group of similarly situated employees who may be discovered by sending out an opt-in notice. In evaluating each side’s submissions, it must be kept in mind that, despite the discovery that has been allowed, defendants still have greater access to evidence than plaintiffs and plaintiffs’ modest showing need not be conclusive. In support of plaintiffs’ conditional certification motion the following facts are before the court:
From January 2007 until May 2010, entities within the Hospital Division, outside of California, automatically deducted 30 minutes for the meal breaks of hourly employees. No entities in the Nursing Center Division or the Rehabilitation Division or any entities in California had 30 minutes automatically deducted for their meal breaks during this period of time. Since May 2010, all hourly employees working at all Kindred facilities have been required to clock out and then back in for their meal breaks. Plaintiffs have identified no evidence that anyone has missed a meal break without being paid after May 2010.
Bergman was employed as a staff registered nurse by Lakeshore from April 2007 to July 2009. Smith began working for Lakeshore in April 2009. Wesseh and Hawk are employed at Lakeshore. Cason worked as a registered nurse at Kindred-Detroit from March 2007 until the facility closed in May 2008.
The Employee Handbook sets forth Lakeshore’s policy with respect to meal breaks and timekeeping.
Meal and Work Breaks (Rest Breaks) Employees will be provided a one-half hour unpaid meal break in accordance with state law. You are expected to schedule your meal breaks with your supervisor. Meal breaks are not considered time worked, so you must leave your workstation to take your meal break. If you are a non-exempt employee, you must clock out unless your facility allows for an automatic meal deduction. Meal breaks may not be used to make up time for tardiness or to leave work early without prior permission from your supervisor.
If your meal break is interrupted by work demands, you must report that to your supervisor and note the 30 minutes on your time card as worked time so that you will be paid.
Your facility will schedule work breaks (or rest) in accordance with applicable state and federal law. Work breaks are considered time worked and are paid.
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Timekeeping For Non-Exempt Employees
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This policy prohibits “off-the-clock” work under all circumstances. You must record all hours that you work, including any time worked before or after the completion of your scheduled shift, while at home, while on call, or during an interrupted meal break, whether or not the time has been approved in advance, using a feedback form or the time reporting method required by your facility. You will be paid for all hours worked, whether or not the time was approved in advance. If you perform any work during your 30-min-ute meal break, then you will be paid for the entire meal break.
Lakeshore employees are informed of its meal break policy at an orientation and provided with a copy of the Handbook. All are required to acknowledge having read the Handbook.. , A so-called missed punch form is used to record interrupted or missed meal breaks.
Bergman is a registered nurse who was employed at three Kindred facilities: Central, Lakeshore, and Montrose. He frequently missed meal breaks. Bergman was familiar with the missed meal break report form, but did not use it. He believed that his supervisors knew the situation. He was not discouraged by supervisors from using the form to record missed meal breaks, however. Bergman was told that meal breaks were not regularly scheduled and that he should “get them when you can.” Bergman was often unable to take meal breaks because of his patients’ clinical needs. Also, frequently there was no one else available to care for his patients. Bergman witnessed other employees miss meal breaks or have their meal interrupted. Other nurses expressed concerns about missing their meal breaks which Bergman heard.
Cason was employed as a registered nurse at Kindred-Detroit. She estimated that she was not able to take a meal break during at least half of the shifts she worked because of her workload. Cason was often interrupted during meal breaks because of patient emergencies and medication administration. She complained about missing meal breaks. Cason observed nurses in the acute care ward eating in patients’ rooms. Cason stated that she never reported missed lunch breaks to her supervisor. She conceded that, had she done so, she would have been paid for the time missed.
Lisa Smith is a phlebotomist who worked at two Kindred facilities: Kindred Lakeshore and Kindred Northlake. She stated that she regularly worked during her meal breaks. There were times when her meal break was interrupted. Her supervisor made clear that the doctors were not getting the results on-time and it was her job to get the .results to the doctor regardless of her meal break. Smith was informed by her supervisor, Vicki Ben-thine, that if she missed a meal break, she
The declaration of Wesseh states that she is employed in the lab unit at Lake-shore. She has been unable to take lunch breaks and her lunch breaks have been interrupted.
Smith and Cason stated that their supervisors would have no way of knowing whether they had worked through their meal breaks unless they reported the fact. No supervisor ever instructed Bergman, Smith, or Cason to work through meal break and not seek compensation for that work.
Bergman and Cason worked 12/é-hour shifts. Bergman worked less than 38/£ hours during the work week. There were many weeks when Cason worked less than 38/6 hours as well as when she worked overtime. Smith worked 8/é-hour shifts and her hours fluctuated.
None of the plaintiffs or opt-ins has records or other evidence to support their estimates of the number of missed or interrupted meal breaks.
The Lakeshore Handbook contains the following:
Auto Meal Deduct
Employees should clock for a meal if they will be gone longer than 30 minutes and/or they will be leaving the premises during their meal. When the employee clocks out/in for the meal, the auto-deduct will not occur. Clocked meals are rounded. Meals shorter than 30 minutes are rounded up to 30 minutes, thus still enforcing the 30-minute auto-deduct.
Meals that are clocked for longer than 30 minutes are rounded to the nearest quarter hour, (example: if a meal is clocked out for 37 minutes it will be deducted as 30 minutes. If the meal is clocked out for 38 minutes it is deducted as 45 minutes)
Employees are required to take their meal breaks, not only to avoid unscheduled labor hours but because State laws often require it, and even where not required by the state — Kindred’s policy requires that all employees working 6.5 hours or more be given a 30 minute meal break to promote physical well-being and quality job performance. Employees should not miss meals unless specifically asked to do so by their supervisor and only in unavoidable circumstances. When asked to miss a meal or return early from a meal break — the employee should be supplied with a feedback form signed by the supervisor indicating that the missed meal is “authorized.” Employees who miss meals without authorization will be counseled regarding policy, and where employees are consistently missing meals with a supervisor’s approval, it may be necessary for the CEO or his/her designate to review with the supervisor.
Feedback forms signed by a supervisor and the employee will represent the documentation necessary to “cancel” a meal deduction and pay the employee for a missed meal.
The FLSA provides that all time which employers permit to be worked must be compensated. 29 U.S.C. §§ 206, 207. Regulations implementing the law state: “Work not requested but suffered or permitted is work time.... The reason is immaterial. The employer knows or hás reason to believe that he is continuing to work and the time is working time.” 29 C.F.R. § 785.11. “[I]t is the duty of the
There is a series of health care cases that have considered conditional certification for auto-deduct policy claims as a violation of the FLSA. Cases considering certification are gathered in Creely,
Defendants rely on Frye v. Baptist Mem’l Hosp. Inc.,
A recent case from this district with facts similar to the present case is DeMarco v. Nw. Mem’l Healthcare,
The district court cases cited by both sides turn largely on the factual showings and the courts’ ihterpretations of the facts. It is not necessary or useful to discuss those cases in detail.
A fact which distinguishes this case from the cited cases is a provision in defendants’ Handbook that states: “Clocked meals are rounded. Meals shorter than 30 minutes are rounded up to 30 minutes, thus still enforcing the 30-minute auto-deduct.” It
Viewing the facts based primarily on the showing made by the plaintiffs, conditional certification will be granted- but limited. The showing made by the plaintiffs is- essentially limited to the meal-break rule as experienced by nurses and hospital employees who are engaged in the direct care of patients. The nature of their interrupted meal breaks was affected by the demands of patient care. Notice will be sent to only those Hospital Division employees who are directly engaged in patient care. Such a limitation has been found to be appropriate. See DeMarco,
Equitable Tolling
Plaintiffs request that the statute of limitations applicable to the FLSA claims be tolled for potential opt-ins. Equitable tolling may be applied if it is shown that (1) the party has diligently pursued his or her rights and (2) some extraordinary circumstance stood in the way and prevented timely filing. McQuiggin v. Perkins, — U.S. -,
Ordinarily, even when there are excessive briefs and exhibits to the briefs, this bench will rule on a motion within a few months after the motion becomes fully briefed. Unfortunately, through no fault of the existing or potential plaintiffs, there has been excessive delay in ruling on the pending motion. Plaintiffs filed their reply brief on June 30, 2011. In the usual course, a ruling would have occurred shortly thereafter.. The long delay in issuing a ruling is an extraordinary circumstance that should not cause the opt-ins to lose out'on the potential benefits of this lawsuit.
The running of the applicable statute of limitations will be tolled from June 30, 2011 until the date today’s ruling is entered on the docket. No tolling will be applied prior to that date and, absent another unusual delay, there will be no further tolling for the time necessary to issue the opt-in notice and process any consent forms that are received. These are circumstances that are part of the ordinary litigating of an FLSA ease, not extraordinary circumstances supporting further equitable tolling.
Although plaintiffs’ pending motion for conditional certification states that a proposed notice to potential opt-ins is attached, no such proposed notice is provided with the motion. A proposed notice was attached to a previously filed motion. See Docket Entry 94-2. This notice has been examined and needs substantial modification.
Within 14 days of the date of today’s ruling, plaintiffs shall submit a revised notice for approval by the court. To the extent it has not already been provided, within 21 days of today’s ruling, defendants shall provide plaintiffs with a list of names and addresses of potential opt-ins. Notice is to be mailed out by no later than July 26, 2013. Consents to join the lawsuit should be filed with the court by no later than September 19, 2013.
Issues raised with respect to the certification of Rule 23(b) classes will be dealt with in a separate opinion and order.
IT IS THEREFORE ORDERED that plaintiffs motions for conditional certification [117, 123] are granted in part and denied in part. Defendants’ motion for summary judgment [142] is denied without prejudice. Plaintiffs motion for equitable tolling [166] is granted in part and denied in part. The statute of limitations for opt-ins is tolled from June 30, 2011 to the date of entry of today’s order. Within 14 days, plaintiffs shall submit a proposed notice for potential opt-ins. Within 21 days, defendants shall provide to plaintiffs a list of
Notes
. Employees at Illinois locations could be citizens of other states, but it is unlikely than more than one-third of them are.
. Section 1332(d)(4) provides-that a “district court shall decline to exercise jurisdiction under [§ 1332(d)(2) ]” if the conditions stated in subsection (d)(4)(A) are met. It does not, as indicated in Beye, provide that jurisdiction cannot be exercised if a different basis for jurisdiction exists.
. Plaintiffs also sought leave to appeal to the United States Court of Appeals for the Seventh Circuit. See In re Bergman, No. 10-8010
. The cases cited by defendants to support a higher standard are off-point. See Def. Answer Br. at 9 n. 8 (citing Pacheco v. Boar’s Head Provisions Co.,
. These cases do not hold that the type of policy that Kindred has is per se lawful, only that such a policy standing alone is not unlawful. Surrounding facts, such as a common practice of not following the written policy, may still show that the FLSA is being violated.
. Kellar,
The FLSA imposes an .obligation on the employer "to exercise its control and see that the work is not performed if it does not want it to be performed.” See 29 C.F.R. § 785.13. The employer "cannot sit back and accept the benefits without compensating for them." Id. “[The employer's] duty arises even where the employer has not requested the overtime be performed or does not desire the employee to work, or where the employee fails to report his overtime hours.” Chao v. Gotham Registry, Inc.,514 F.3d 280 , 288 (2d Cir.2008). The mere promulgation of a rule against overtime work is not enough. 29 C.F.R. § 785.13. Nor does the fact that the employee performed the work voluntarily necessarily take, her claim outside of the FLSA. 29 C.F.R. § 785.11.
However, the FLSA stops short of requiring the employer to pay for work it did not know about, and had no reason to know about. See 29 U.S.C. § 203(g), (" 'Employ' includes to suffer or permit to work.”); Reich [v. U.S. Dep’t of Conservation & Natural Resources, State of Ala.], 28 F.3d [1076] at 1082 [(11th Cir.1994)] (“[A]n employer's knowledge is measured in accordance with his duty ... to inquire into the conditions prevailing in his business.... [A] court need only inquire whether ... [the employer] had the opportunity through reasonable diligence to acquire knowledge.” (internal quotation marks and citations omitted)); 29 C.F.R. § 785.11 ("The employer knows or has reason to believe that he is continuing to work.”).
. Defendants' contention that the existing plaintiffs were not necessarily fully diligent in pushing this case along need not be considered. The period of tolling is being limited to the additional time taken to rule on the motion; a time period during which plaintiffs had no action to take that could be considered lacking in diligence.
. For example, no reference should be made to this being certification of a class, potential opt-ins being class members, and the existing plaintiffs being representatives.