MEMORANDUM AND ORDER
Plaintiff Melissa Greenstein has brought this action under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. and the Kansas Wage Payment Act, K.S.A. 44-312 et seq. alleging unpaid straight time and overtime compensation. Plaintiff worked as a news producer for a Kansas City television station owned by defendant Meredith Corporation. This case is before the court upon a motion for conditional class certification under FLSA, 29 U.S.C. § 216(b), filed on behalf of Greenstein and other persons who have filed notices to join in the lawsuit.
Section 216(b) provides in part:
An action to recover the liability prescribed [in § 216(b) ] may be maintained ... 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.
(emphasis added). In this case, the motion for conditional certification seeks “conditional certification of a class consisting of [a]ll [ejurrent and former Meredith employees employed in the position/title of ‘producer’ whose job duties involved the creation and coordination of local television programming, and/or promotions related to such programming, and who were classified by Meredith as exempt from the right to receive overtime.” Doc. No. 36, p. 1. The motion also requests: an order designating Greenstein as class representative; an order approving plaintiffs counsel to act as class counsel; the court’s approval of a proposed notice and method of distribution to putative class members; and a directive that defendant share certain employee information with plaintiffs counsel.
Defendant Meredith is a company that operates 12 television stations across the nation. Defendant does not object to conditional certification as to news producers who worked at defendant’s Kansas City television station, but opposes conditional certification of a class including all other producers at the Kansas City station and all producers at defendant’s other stations. Defendant also objects to plaintiff’s proposed notice, the proposed procedure for distributing the notice, and to plaintiffs request for some employee information.
I. Request for conditional certification
To succeed upon a motion for conditional certification, plaintiff must present substantial allegations that the putative class members were together the victims of a single decision, policy, or plan. Thiessen v. General Electric Capital Corp.,
The complaint alleges that plaintiff Greenstein was employed as a “producer” for defendant and paid on a salary basis. Doc. No. 1, ¶5. The complaint further alleges that defendant has had a policy of failing to compensate its “producers” straight time for all hours worked and overtime compensation for all hours worked in excess of 40 hours per week. Id., ¶ 21. The complaint asserts that plaintiff and the putative class (producers who worked for defendant, but were not paid overtime) are similarly situated in that they had the same job duties and compensation structure. Id., ¶¶ 25, 40 & 43. The complaint asserts that plaintiff and the putative class are entitled to be paid overtime compensation under FLSA. Id., ¶¶ 50-52. Plaintiff contends in the complaint that she and other producers should have been classified as non-exempt, but defendant treated them as exempt from receiving overtime under FLSA.
B. Affidavits
Five affidavits have been submitted from former employees of defendant in support of the motion for conditional certification. Three affidavits are from former news producers for defendant and they describe similar job responsibilities. Doc. No. 37, affidavits of Melissa Greenstein, Morgan C. Smith and Daniel J. English, Exhibits E, F & H. These affidavits state that the affiants commonly worked more than 40 hours a week, but were not paid overtime. The affidavits also indicate that the affiants spoke with other news producers who worked for defendant and that these employees had similar duties and were compensated in the same manner. These affidavits do not state where the affiants worked.
An affidavit from Kellee B. Divine, a former promotions producer at one of defendant’s Kansas City stations, sets forth her job responsibilities which are in some ways different, but which bear similarity to the duties of a news producer. Doc. No. 37, Exhibit G. She states in the affidavit that she has spoken to other promotions producers and that those employees had similar duties and were compensated in the same manner. According to her affidavit, she regularly worked more than 40 hours a week in the job of promotions producer. This is consistent with the affidavit of Daniel English who stated that he also worked as a promotions producer.
The substance of these affidavits is similar to the affidavit of John L. Gilmore, Jr. who worked as a sports producer for an Atlanta station operated by defendant. Doc. No. 37, Exhibit I.
C. Deposition testimony
Plaintiff has submitted the deposition testimony of Ms. Lora Koch, a human resources consultant in defendant’s corporate headquarters. Ms. Koch testified that defendant’s corporate office signed off on decisions regarding whether employees had exempt status under the FLSA.
D. Job descriptions
Finally, plaintiff has included job descriptions for various producer positions at a number of stations owned by defendant. Doc. No. 37-10. These positions include: writer/producer; promotion producer; multimedia producer; news producer;
E. Arguments for a narrower class certification
Defendant argues for a narrower class certification restricted to defendant’s Kansas City television station and the position of news producer. Defendant contends that this approach is more appropriate because plaintiffs allegations do not establish that the producers in plaintiffs proposed class would be similarly situated. According to defendant, its television stations are scattered across the country and each station manages its own workforce through its own human resources manager. Defendant asserts that each station creates its own job descriptions, recruits its own producers, and decides how the producers are classified, compensated and scheduled. These arguments are supported by statements made in Ms. Koch’s deposition.
Defendant further argues that the affidavits submitted by plaintiff are imprecise and rather limited in scope. The affidavits do not come close to addressing all categories of producers or all of defendant’s television stations. The affiants also did not identify the sources of their information when they stated that they spoke with other producers for defendant.
F. Analysis of arguments and authority
Mindful, of course, that plaintiffs lenient burden at this stage is to present substantial allegations that the putative class members were together the victims of a single decision, policy, or plan, the court finds that plaintiff has satisfied that standard. Defendant’s arguments regarding local office autonomy and differences in job responsibilities raise fact questions which are better suited for determination at the second stage of analysis where the court may consider “several factors, including (1) disparate factual and employment settings of the individual plaintiffs; [and] (2) the various defenses available to defendant which appear to be individual to each plaintiff ...” Thiessen,
In Holbrook v. Smith & Hawken, Ltd.,
Here, there may be a lack of uniformity. Indeed, some producers may have been classified as non-exempt. Nevertheless, the court finds there are sufficient substantial allegations to support a claim that defendant had a general policy or plan of miselassifying producers as exempt employees.
Defendant contends that this court should follow the result in Ruiz v. Serco, Inc.,
Defendant also cites MacGregor v. Farmers Insurance Exchange,
Finally, defendant makes extensive reference to two Kansas cases: Braun v. Superior Industries International, Inc.,
On the basis of this analysis and authority the court shall grant the requested conditional class certification.
II. Objections to proposed notice
Several issues have been raised regarding the notice plaintiff proposes be sent to putative class members. Defendant first objects to statements such as “your legal rights are affected” and that a
Next, defendant objects to any implication that the court approved of the merits of the case which might be conveyed by placing the court's title as a heading to the notice. The court concurs with this objection as far as placing the court's title as a heading to the notice, but it is permissible to say that the court authorized the sending of the notice.
Defendant objects that the notice fails to inform class members that they might have to be deposed, testify or appear in Kansas City, or that there is a possibility that they could be responsible for costs. The court sustains this objection. See Allen v. Mill-Tel, Inc.,
Defendant's remaining objections re~ garding the deadline to respond to the notice and the date defining eligibility to participate in the class action appear to be conceded by plaintiff.
Defendant has asked that the court direct that the parties confer with each other following the issuance of this order in an attempt to agree upon a proposed notice. The court agrees with this proposal.
III. Objections to requested notice dist'ri-bution procedures
Defendant objects to the request that defendant post the notice at the workplace. The court shall sustain this objection. See Hadley v. Wintrust Mortg. Corp.,
The court shall also sustain defen dant's objection to plaintiff's request for email addresses and social security numbers of putative class members for the following reasons. First, defendant states that it does not collect employees' personal e-mail addresses. Second, at this time, it is not clear that this information is necessary for plaintiff to contact the persons who need to receive the notice. Without a showing of necessity, the court denied a request for social security numbers in Allen, supra at *8. If, at a later time, plaintiff wishes to approach the court on this matter again, plaintiff may do so.
Additionally, the court shall deny defendant's objection to plaintiffs request for phone numbers. See Hadley, supra. In its remaining aspects, the request for electronic and hard copies of employee information for all individuals who meet the class description shall be granted.
IV. Conclusion
Consistent with the court's comments in this memorandum and opinion, the court shall grant in part and deny in part plaintiffs motion for conditional certification. Doc. 36. The court shall conditionally certify the proposed class in the motion. Melissa Greenstein shall be designated as class representative and plaintiffs counsel are approved to act as class counsel.
Plaintiffs request for approval of a proposed notice to class members is denied consistent with this order. The court di~
The court shall decline plaintiffs request for an order that the notice be posted at the workplace or that it be transmitted with paychecks. The court shall also decline, without prejudice, plaintiffs request for production of email addresses and social security numbers. Otherwise, the request for electronic and hard copies of employee information for all individuals who meet the class description shall be granted.
IT IS SO ORDERED.
Notes
. In one of her depositions (Doc. No. 37-2), Ms. Koch testified that the corporate compensation office generally entered on job descriptions whether the job was exempt or nonexempt. Pp. 19-20. She stated that the compensation department signed off on whether positions were exempt and that questions about FLSA status were answered at that office. Pp. 26 & 30. She also stated that the compensation department decided what FLSA exemption would apply to a news producer position. P. 66.