MEMORANDUM
Plaintiffs Mary Camper, Susan O’Brien, Thomasina Woodland, Cynthia Berry, Pamela Roach, Patricia Butler, Sharon Hebb, Bridget Dickerson, Annamarie Mimay, Agnes Price, and Barbara Courtney (“Plaintiffs”), on behalf of themselves and those similarly situated, have sued their current or former employer, Defendant Home Quality Management, Inc. (“HQM”), alleging violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., as amended, and the Maryland Wage Payment and Collection Law, Md.Code Ann., Lab & Empl. §§ 3-501-09, and breach of contract. HQM has filed a motion for sanctions based on the alleged failure of several of the plaintiffs to appear for their depositions. The plaintiffs have filed a motion for court facilitated notice to similarly situated employees. Both motions have been fully briefed and no hearing is deemed necessary. See Local Rule 105.6. For the reasons articulated below, the defendant’s motion for sanctions will be denied; the plaintiffs’ motion for court facilitated notice to similarly situated employees will be granted in part.
BACKGROUND
Defendant HQM manages 47 nursing home facilities, all of which are engaged in caring for the elderly. (Plfs.’ Mem. Supp. Mot. Court Fac. Not., Patricia Wheeler Dep. at 11-12). Several of the facilities, and 400 of the company’s 1700 employees, are located in Maryland. (Def.’s Opp’n at 1, 2). HQM’s payroll policies are promulgated by corporate headquarters and checks are issued through the corporate payroll department. (Plfs.’ Mem. Supp. Mot. Court Fac. Not., Wheeler Dep. at 12; Chiara O’Connor Dep. at 14).
All HQM hourly employees are required to punch a time clock at the beginning and end of their assigned work shift. (Def.’s Opp’n at 3). According to HQM policy, all hourly employees must obtain supervisory approval to clock in more than seven minutes before their scheduled start time and to clock out later than their scheduled quitting time. (Plfs.’ Mem. Supp. Mot. Court Fac. Not., Ex. 2). Additionally, HQM automatically deducts a one half-hour unpaid meal break from those employees who are scheduled to work six hours or more. (Id., Deborah McNeal Dep. at 36). If for some reason an employee is unable to take the meal break or part of it, the employee may complete a form and request to be compensated for the time. (Def.’s Opp’n Ex. 3).
On paydays, all hourly employees are issued a paycheck along with a time sheet which shows the hours they worked each day during that pay period. If an employee has any reason to believe that she was not compensated for all time worked in the pay period, she may request the Human Resources Director and/or the Administrator of the nursing home to make an adjustment. (Id., Hebb Dep. at 21-23; Berry Dep. at 56).
Plaintiffs allege that they sometimes worked through their lunch breaks and were not compensated for that time. Plaintiff Sharon Hebb testified that this occurred to her about two or three times per week. (Id., Hebb Dep. at 25). Cynthia Berry testified that over a certain period of time, she worked through her lunch break approximately three times per week. (Plfs.’ Motion, Berry Dep. at 42-44). She also alleges that because of the heavy workload, she worked before clocking in. (Id., Berry Dep. at 35).
ANALYSIS
I. Motion for Sanctions
Federal Rule of Civil Procedure 37(d) allows the court to sanction parties who fail “to appear before the officer who is to take the deposition after being served with proper notice ....” These sanctions, outlined at Rule 37(b)(2)(A)-(C), become progressively more severe, ranging from an order establishing certain facts to the entry of a default
Federal district courts possess great discretion to sanction parties for failure to obey discovery orders. See Chambers v. NASCO, Inc.,
HQM cites several cases in which the court has used its discretion to dismiss an action as a consequence to parties who failed to appear for them own depositions. In most of those cases, however, the dismissal followed a pattern of dilatory behavior. See, e.g., Carter v. Prince George’s County,
Additionally, the Fourth Circuit has more recently emphasized the importance of warning a party prior to dismissing its claim as a discovery sanction. See Hathcock v. Navistar Int’l Transp. Corp.,
Although HQM requests the dismissal without prejudice of nine plaintiffs whom it alleges failed to attend their scheduled depositions, the letters exchanged between the attorneys indicate that only four of the plain
HQM’s request for dismissal as to Mary Camper, Susan O’Brien, and Barbara Courtney will be denied for two reasons. First, the plaintiffs had no notice or warning that failure to appear might result in dismissal of their action. As discussed above, the Fourth Circuit favors such pre-dismissal warnings. See, e.g., Hathcock,
Accordingly, HQM’s motion for sanctions will be denied. The plaintiffs are on notice, however, that further refusal to comply with discovery deadlines may result in dismissal.
II. Motion for Court Facilitated Notice to Similarly Situated Employees
Plaintiffs have filed this suit for unpaid wages, overtime pay, and liquidated damages pursuant to the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. §§ 201 et seq., on behalf of the named plaintiffs and others similarly situated. They also have filed a motion pursuant to § 216(b)
In Hoffmann-La Roche, Inc. v. Sperling, the Supreme Court held that “district courts have discretion, in appropriate cases, to ... facilitate] notice to potential plaintiffs.”
The threshold issue in determining whether to exercise this discretion is whether the plaintiffs have demonstrated that potential class members are “similarly situated.” 29 U.S.C. § 216(b). While courts employ different standards to determine whether plaintiffs have made a sufficient showing to warrant court facilitated notice, I agree with the conclusion of Judge Legg in this District that a plaintiff should be required “to make a preliminary factual showing that a similarly situated group of potential plaintiffs exists” before court assistance is granted. D’Anna v. M/A-COM, Inc.,
In this case, the plaintiffs have established that HQM has a policy of automatically deducting a 30-minute unpaid daily lunch break from the pay of all hourly employees who work at least six hours a day. This policy is intended to be implemented company-wide. (Plfs.’ Mem. Supp. Mot. Court Fac. Not., O’Connor Dep. at 9). Two individual plaintiffs have alleged in sworn deposition testimony that one half-hour has been deducted from their time sheet even on those days on which they worked through their scheduled meal break. (Id. Hebb Dep. at 24-25; Berry Dep. at 43-44).
HQM also has a company-wide policy whereby employees may not punch in more than seven minutes prior to their scheduled start time or punch out after their scheduled end time without prior supervisory approval. (Id., Ex. 2). Ms. Berry testified in her deposition that she was not paid for work she performed prior to her allowed clocking-in time. (Id., Berry Dep. at 35).
HQM correctly contends that, in order to establish an FLSA violation, the plaintiffs must show actual or constructive knowledge on the part of the employer that its employees are working off the clock. Bailey v. County of Georgetown,
Based on the above testimony, the plaintiffs have advanced a sufficient preliminary factual showing that “potential plaintiffs were subjected to a common ... scheme.” Jackson v. New York Telephone Co.,
While the plaintiffs have preliminarily established the existence of a company-wide policy regarding the use of time clocks, their factual showing of uncompensated work known to HQM supervisors is limited to the Bayside facility. Accordingly, notice is war
A separate Order follows.
ORDER
For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:
1. Defendants’s Motion for Sanctions is Denied;
2. Plaintiffs’ Motion for Court Facilitated Notice to all potential opt-in FLSA class members is Granted as to the Bayside facility only. Counsel shall consult and attempt to agree on a method and form of notice. A status report is due October 23, 2000.
3. The pretrial conference and trial dates of October 27, 2000 and November 6, 2000 are hereby Cancelled.
4. Copies of this Order and the accompanying Memorandum shall be mailed to counsel of record.
Notes
. The defendant submitted forms showing only that employees’ pay was adjusted when they had forgotten to clock in or out on time. It submitted no examples indicating that employees were compensated for missed lunch breaks. (Def.'s Opp'n Ex. 3).
. Cynthia Berry attended her deposition. Her sister, Plaintiff Sharon Hebb, though not scheduled, was able to be deposed, because she accompanied Ms. Beriy to the deposition.
. That section provides:
An action ... may be maintained against any employer ... in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.
29 U.S.C. § 216(b).