Case Information
*1 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS URBANA DIVISION
______________________________________________________________________________ DANEEN MITCHELL, on behalf of herself )
and on behalf of others similarly situated, )
)
Plaintiff, ) v. ) Case No. 22-CV-2269 )
VILLAS OF HOLLY BROOK SENIOR )
LIVING, LLC, )
)
Defendant. )
ORDER
Plaintiff, Daneen Mitchell, on behalf of herself and others similarly situated, filed an Amended Class Action Complaint (#22) against Defendant, Villas of Holly Brook Senior Living, LLC, on February 2, 2023, alleging violations of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. (“FLSA”), the Illinois Minimum Wage Law, 820 Ill. Comp. Stat. 105/1 (“IMWL”), and the Illinois Wage Payment and Collection Act, 820 Ill. Comp. Stat. 115/1 (“IWPCA”) (the two Illinois statutes will be collectively known as the “Illinois Acts”). Plaintiff filed a Motion for Conditional Certification and Court-Supervised Notice to Putative Collective Members (#37) on October 2, 2023. Defendant filed a Response (#48) on November 9, 2023, to which Plaintiff filed a Reply (#49) on November 16, 2023. For the following reasons, Plaintiff’s conditional certification and notice Motion (#37) is GRANTED.
BACKGROUND
In considering a motion for conditional certification under § 216(b) of the FLSA,
often before discovery has been conducted, the court may consider the allegations in the
*2
complaint and affidavits submitted by the parties. See
Iannotti v. Wood Group Mustang
,
Plaintiff’s Amended Complaint
Overview
Plaintiff and the putative collective/class members (“FLSA Collective”) are those similarly situated persons who worked for Defendant at any time during the relevant time periods, and have not been paid for all hours worked nor the correct amount of overtime in violation of Illinois and federal law. Defendant’s regular practice was to require Plaintiff and the FLSA Collective to work through their unpaid meal breaks. Specifically, Defendant required them to clock out for 30 minutes to make it appear as though they received a break, even though Plaintiff and the FLSA Collective were not relieved of their job duties and regularly performed compensable work “off the clock” through their respective meal-period breaks. Should they forget to clock out for at least 30 minutes, each shift, Defendant would apply a 30-minute deduction to their wages to make it appear as though Plaintiff or a FLSA Collective member received a meal break. The effect of Defendant’s practice was that all compensable time worked by Plaintiff and the FLSA Collective was not counted and paid, thus Defendant failed to properly compensate them for all hours worked and has failed to properly compensate them for the proper amount of overtime under the FLSA.
Parties
Plaintiff was employed by Defendant in Illinois during the relevant time period.
She did not receive compensation for all hours worked or the correct amount of *3 overtime compensation for all hours worked in excess of 40 hours per week.
The FLSA Collective are those current and former hourly patient-facing care providers who were employed by Defendant at any time from December 13, 2019, through the final disposition of this matter, and have been subjected to the same illegal pay system under which Plaintiff worked and was paid.
Defendant is a domestic limited liability company, licensed to do business in Illinois.
Background Facts
Defendant operates more than 30 assisted living facilities across Illinois, Florida, and Indiana. To provide its services, Defendant employed numerous hourly workers, including Plaintiff and the FLSA Collective. These workers were employed by Defendant as non-exempt, hourly patient-facing care providers who were not paid for time spent performing compensable work during their meal breaks. Their job titles include: certified medical assistant, registered nurse, certified nurse assistant, and licensed practical nurse.
Defendant agreed, by contract, to pay each worker by the hour for every hour they worked on Defendant’s behalf. Their job duties primarily included assisting residents with their daily activities, such as changing clothes, eating, bathing, and walking. While exact job titles may differ, these hourly employees were subjected to the same or similar illegal pay practices for similar work throughout Defendant’s facilities.
Plaintiff was employed by Defendant in Washington, Illinois, from approximately October 2019 to October 2022. Plaintiff and the FLSA Collective are similarly situated with respect to their job duties, pay structure, and the policies and *4 practices of Defendant, which Plaintiff alleges resulted in the FLSA and Illinois Acts violations. They are similarly situated with respect to their job duties, as they all assist residents on behalf of Defendant. They are similarly situated with respect to pay structure, in that they are all paid on an hourly basis and are required to work through their unpaid meal break. They are similarly situated with respect to Defendant’s policies and practices, resulting in the complained of FLSA and Illinois Acts violations.
Plaintiff and the FLSA Collective were typically scheduled to work between 36 and 48 hours per week, referred to as “on the clock” hours. In addition to those hours, they worked between one and one-half to two and one-half hours “off the clock” per week and have not been compensated for that time. Defendant requires that they clock out for at least 30 minutes each shift for a meal break. Should they forget to clock out for their meal break during their shift, Defendant would automatically deduct one 30- minute meal period from their daily time.
Despite either requiring the workers to clock out for 30 minutes or automatically deducting 30 minutes of time from their daily time, Defendant does not completely relieve workers from duty during their shift for the purposes of taking their meal breaks. Defendant’s policies require Plaintiff and the FLSA Collective to assist patients whenever a patient requests or needs assistance, even if on an unpaid meal break. They are prohibited from ignoring patients in need of help pursuant to Defendant’s policies. They are required to perform duties, whether active or inactive, during all hours of their shift. Although clocked out, they are still required to monitor residents, assist residents when called upon, answer call lights or resident alerts, and perform whatever duties their managers require of them.
Due to these requirements, Plaintiff and the FLSA Collective were frequently unable to receive sufficient time to have an uninterrupted 30-minute meal break due to their constant patient calls and duties. Due to staffing shortages, Plaintiff and the FLSA Collective were typically overloaded with patients, and as a result were rarely ever able to have 15 minutes to themselves between patient calls and work duties. Indeed, some days they were so busy they did not even have time to punch out for their “fake” meal break. Plaintiff alleges that when “that occurs, [Defendant] will make a deduction to their wages to continue their charade - that is to make it appear in the pay records as though Plaintiff and the FLSA Collective are receiving a meal break.”
After work one day during the relevant time period, Plaintiff’s supervisor, office manager Christy Campbell, asked Plaintiff why she had not clocked out during her shift for at least 30 minutes. Plaintiff informed Campbell that she had been so busy all day she never had a chance to. Campbell told Plaintiff that she was going to deduct 30- minutes from her wages because she had forgotten to clock out as required. When Plaintiff protested and inquired why such a deduction had to be made when Plaintiff had been unable to take any break, Campbell responded that Defendant required a 30 minute deduction for each hourly employee’s wages so that it “appeared” as though each hourly employee received a meal break, because if a deduction was not made, Defendant could get in regulatory trouble for not providing a meal break.
Plaintiff alleges that, instead of actually ensuring Plaintiff and the FLSA Collective were able to take a meal break, Defendant “simply fakes it,” by making it appear on paper that the workers received a meal break by requiring them to clock out or by making a deduction to their wages. Plaintiff alleges that Defendant was aware *6 that they regularly worked through their meal periods without pay, in violation of the FLSA and the Illinois Acts.
Plaintiff alleges that Defendant’s systematic deduction of 30 minutes each day from Plaintiff’s and the FLSA Collective’s “on the clock” time resulted in their working straight time hours and overtime hours for which they were not compensated at the rates required by FLSA and the Illinois Acts. Specifically, when Plaintiff and the FLSA Collective worked three 12-hour shifts in a week and did not receive a meal break during any shift, Defendant’s meal break policy resulted in their not being paid for one and one-half hours of compensable straight time work. Relatedly, when they worked four 12-hour shifts in a week and did not receive a meal break during any shift, the policy resulted in their not being paid for two hours of compensable overtime work. As a result of Defendant’s failure to compensate Plaintiff and the FLSA Collective for compensable work performed “off the clock,” they worked straight time and overtime hours for which they were not compensated at the rates required by the FLSA and the Illinois Acts.
Plaintiff alleges that Defendant knew or should have known that it was not compensating Plaintiff and the FLSA Collective for the proper amount of straight time and overtime compensation in violation of the FLSA, and that this caused financial injury to them. Plaintiff alleges that Defendant knew or should have known that either automatically deducting 30 minutes for a meal break or requiring Plaintiff and the FLSA Collective to clock out for a meal break, while it simultaneously caused and required them to perform during that time, did cause them financial injury.
Plaintiff further alleges that Defendant did not pay her or the FLSA Collective *7 time and a half for all hours worked in excess of 40 hours in a work week, and that Defendant’s pay policies and practices violated the FLSA. Because Defendant did not pay them for straight time worked, those policies and practices violated the Illinois Acts.
Causes of Action
Count 1 of Plaintiff’s Amended Complaint alleges that Defendant violated §§ 207 and 215(a)(2) of the FLSA by employing individuals in an enterprise engaged in commerce, the operation of a hospital, for work weeks longer than 40 hours without compensating such non-exempt employees for all the hours they worked in excess of 40 hours per week at rates at least one and one-half times the regular rates for which they were employed. Moreover, Plaintiff alleges, Defendant knowingly, willfully, and with reckless disregard carried out its illegal pattern of failing to pay Plaintiff the proper amount of overtime compensation for all hours worked over 40 each week, in violation of § 255(a) of the FLSA. Plaintiff alleges these actions were unreasonable and not in good faith.
Plaintiff also alleges a collective action pursuant to § 216(b) of the FLSA, on behalf of other of Defendant’s employees similarly situated to Plaintiff with respect to the work they perform and the manner in which they were paid, who have also been victimized by Defendant’s practices and policies in violation of the FLSA. Plaintiff alleges that Defendant’s failure to pay Plaintiff and the FLSA Collective overtime compensation at the rates required by the FLSA results from generally applicable policies and practices of Defendant, and does not depend on the personal circumstances of Plaintiff or the FLSA Collective. Plaintiff alleges that her experiences are typical of *8 the experiences of the FLSA Collective, and that all of the FLSA Collective, regardless of their specific job titles, precise job requirements, rates of pay, or job locations, are entitled to be properly compensated their overtime wages for all hours worked in excess of 40 each week. Although damages may be individual in character, there is a common nucleus of operative fact, and absent a collective action, many members of the proposed FLSA Collective will likely not obtain redress of their injuries and Defendant will retain the proceeds of their violations.
Count 2 alleges violations of the Illinois Acts, and that Plaintiff and the FLSA Collective are non-exempt employees who Defendant agreed to pay for each hour worked, but that Defendant had a company-wide policy and practice of failing to pay them for each straight time and overtime hour worked.
As a result of Defendant’s company-wide policy and practice, and its failure to pay the agreed-upon wages and overtime wages to Plaintiff and the FLSA Collective, Defendant violated the Illinois Acts. Plaintiff alleges that she and the FLSA Collective meet the requirements for class certification on their Illinois Acts claims pursuant to Federal Rule of Civil Procedure 23.
Affidavits
The parties have attached affidavits to their filings, which may also be
considered by the court in ruling on a § 216(b) conditional certification request. See
Iannotti
,
Plaintiff’s Affidavits
Plaintiff
Plaintiff was employed as an activity director at Defendant’s Washington, *9 Illinois, facility from October 2019 to October 2022. She was paid by the hour at a rate of $17.00 per hour. Her daily duties included preparing activities for the residents, monitoring residents while they engaged in activities, taking them to doctor’s appointments, helping medical staff with residents, and charting. She typically worked more than 40 hours a week and was required, as part of her employment, to work overtime hours on a regular basis. She states that she knows her fellow hourly employees were also required to work overtime on a regular basis.
Plaintiff was required by Defendant to clock out for a meal break each day, even if she did not actually receive a full, undisturbed meal break. Her supervisor, Angela Donavan, informed her and her coworkers that they were required to clock out each day for a meal break. However, Plaintiff’s unpaid meal breaks were often less than 20 minutes because they would be interrupted by residents who needed her help. Even though Plaintiff told Donavan she was unable to take an uninterrupted break each day because of all of her job duties, Donavan did not correct her time and pay her for breaks that lasted 20 minutes or less. No one at Defendant told her she could be paid for her uninterrupted breaks that lasted 20 minutes or less. Plaintiff knows from talking with her coworkers that they also had their meal breaks regularly interrupted and were not paid for meal breaks that lasted 20 minutes or less.
Plaintiff states that Defendant required all hourly employees to take care of its residents whenever needed, and if employees received a resident alert through the walkie talkie, Defendant’s policies required them to respond to the call or alert immediately. Employees also always had to have their walkie talkies on them at all times, even during breaks. Because Plaintiff had to help so many residents, she rarely *10 had time to take an undisturbed meal break.
Plaintiff knows that Defendant was aware that hourly employees had unpaid meal breaks of 20 minutes or less because they frequently complained about it to management. Plaintiff avers that Defendant subjected herself and her coworkers to the same or substantially similar policies discussed in her affidavit.
Plaintiff knows, based on her own experience and conversations with other hourly employees, that texting is the best way to reach them, and that they would be interested to learn that they could recover unpaid wages and overtime from Defendant and would want to join the lawsuit.
Samantha Bullock
Samantha Bullock was employed as a certified nursing assistant (“CNA”) at Defendant’s Pekin, Illinois, facility from February 2020 until July 2023. As a CNA she was paid hourly at rate of $17.00 an hour. She worked in the memory care unit, and her daily duties included helping residents with their daily activities such as bathing, eating, dressing, moving around, and going to the bathroom. She worked nights, and she and one other CNA typically managed 45 residents in the memory care unit on their own. She and her fellow hourly employees were required to work overtime hours on a regular basis.
She was required by Defendant to clock out for a meal break each day, even if she did not actually receive an undisturbed meal break. She told her facility director, Nicole Decker, that she could not take an uninterrupted meal break because it was not safe or even physically possible for the only other CNA alone to care for more than 40 memory care residents. Decker said she had to clock out regardless. Bullock’s unpaid *11 meal breaks were often less than 20 minutes because they would be interrupted by residents or coworkers who needed her help. Defendant never corrected her time to pay her for interrupted breaks that lasted less than 20 minutes. No one at Defendant ever told her she could be paid for her interrupted breaks that lasted less than 20 minutes. Bullock states that she knows from talking with her coworkers that they also had their meal breaks regularly interrupted and were not paid for breaks that lasted less than 20 minutes.
Bullock repeats Plaintiff’s allegations regarding Defendant’s requirement that hourly employees take care of Defendant’s residents whenever needed. Bullock also repeats the allegation that Defendant was aware that employees had unpaid meal breaks of 20 minutes or less due to complaints. Bullock also repeats Plaintiff’s allegation that Defendant subjected her coworkers to the same or substantially similar policies, and that texting would be the best way to communicate with them.
Justine Bregin
Justine Bregin was employed as a resident assistant (“RA”) at Defendant’s Bloomington, Illinois, facility from January 2019 to August 2021. As an RA, she was paid by the hour at a rate of $13.00 an hour. Her daily duties included assisting residents with bathing, dressing, toileting, eating, charting, and passing out medications. She and her fellow hourly employees were required to work overtime hours on a regular basis.
Bregin was required to clock out for a meal breach each day, even if she did not actually receive an undisturbed meal break. These unpaid meal breaks were often less than 20 minutes because they would be interrupted by residents who needed her help. *12 No one at Defendant told her she could be paid for interrupted meal breaks that lasted 20 minutes or less. She knows from talking to her coworkers that they also had their meal breaks regularly interrupted and were not paid for breaks lasting 20 minutes or less.
The rest of her allegations mirror those made above.
Tina Cornell
Tina Cornell was employed as a licensed practical nurse (“LPN”) at Defendant’s Danville, Illinois, facility from May 2019 to June 2021. As an LPN she was paid hourly at a rate of $27.50 an hour. As an LPN, her daily duties included providing day to day care for residents by passing out and monitoring medication, and assisting the residents with their daily activities, such as showering, dressing, and feeding. She and her hourly coworkers were regularly required to work overtime.
Cornell was required by Defendant to clock out for a meal break each day, even if she did not receive a full undisturbed 30-minute meal break. Because she was the only nurse on staff at her location, and had to manage over 30 residents, Cornell rarely took a meal break and would typically eat at her desk while charting and monitoring residents. Initially, because she was working while eating, she did not clock out for a meal break. However, after a while, her head administrator, Ms. Glover, told her that she had to clock out for around 30 minutes each day for a meal break, even if she did not actually take a meal break, or else she would be in trouble.
Cornell told Glover that because she is the only nurse on staff, she did not have time to actually take a break. Glover told her to just clock out and keep working so it looks like she took a break. Cornell did so because she did not want to get in trouble. *13 Even though Glover knew Cornell was clocked out while continuing to work, she did not correct Cornell’s time and pay her for the interrupted short breaks. No one at Defendant told her she could be paid for her interrupted breaks that lasted less than 20 minutes. Cornell knew that her coworkers were also required to clock out for a meal break each shift, and that they also had their breaks regularly interrupted and were not paid for meal breaks that lasted 20 minuted or less.
The rest of her allegations mirror those made in the other affidavits regarding Defendant’s policies, knowledge of the violations, other coworkers being subjected to the policies, and preference for receiving information via text message.
Andrea M. Crowder
Andrea Crowder was employed at Defendant’s Danville facility as a CNA from December 2020 to November 2021. As a CNA, she was an hourly employee paid at a rate of $17.80 per hour. Her duties were similar to that of CNA Bullock, and her allegations mirror those described above.
Brooke Everette
Brooke Everette worked as a CNA at Defendant’s Bellevue, Illinois, facility, from March until July 2021. As a CNA, she was an hourly employee paid at a rate of $16.00 per hour. Her duties were similar to those of CNAs Crowder and Bullock. Like the other affiants, her meal breaks were often interrupted, and would last 20 minutes or less. Even though she informed her supervisors, they did not correct her time and pay her for breaks that lasted less than 20 minutes. Nobody in Defendant’s employ told her she could be paid for interrupted breaks that lasted 20 minutes or less. Unlike some of the other affiants, Everette does not state that anyone in Defendant’s management told *14 her to clock out as though she had an uninterrupted meal break even if she had been interrupted. The remainder of her affidavit is substantially similar to the others.
Alexis Godbee
Alexis Godbee was employed as an activities assistant (“AA”) at Defendant’s Washington facility from March to December 2019, and then as activities director (“AD”) in the same facility from December 2019 until June 2020. She worked in both memory care units in her facility. As an AA and AD she was an hourly employee and paid at a rate of $12.53 an hour. As an AA, her daily duties included making plans for Defendant’s residents, events, helping residents throughout the day, assisting in case of falls, and generally assisting medical staff in whatever they may need. As AD her duties were largely the same but included planning and supervising duties as well. The remainder of her affidavit mirrors the others described above.
Annie Grimm
Annie Grimm was employed as an RA at Defendant’s Savoy, Illinois, facility from July 2022 to December 2022. As an RA she was an hourly employee paid at a rate of $13.00 an hour. Her duties were similar to those of RA Bregin. Her affidavit mirrors that of Bregin.
Alyssa Johnson
Alyssa Johnson was employed as an RA at Defendant’s Harrisburg, Illinois, facility from April 2019 to January 2020. As an RA she was an hourly employee paid at a rate of $9.00 an hour. Her duties were similar to those of RAs Bregin and Grimm. Her affidavit mirrors those of Bregin and Grimm.
Tiffany Stevens
Tiffany Stevens was employed as an AA at Defendant’s Harrisburg facility from April 2020 to June 2021. As an AA she was an hourly employee and paid at a rate of $14.50 per hour. Her duties were the same as those of AA Godbee.
Her affidavit is similar to those of the others. It also includes allegations that she was required to clock out for a meal break each day, even if she did not receive a full undisturbed meal break. Her facility’s administrator, Bonnie Mahan, informed all staff that they needed to clock out of a meal break each day. Although Stevens complained that it was impossible to take an undisturbed meal break each day because of how many residents needed help, Mahan said they still had to clock out.
Stevens estimates that 75% of her meal breaks were interrupted by residents who needed help. In most cases, she would return from her meal break and clock back in and go help, but if it was an emergency she would have to run to the resident and would not be able to clock in until after the emergency. On those occasions, Mahan would tell her to fix her time to reflect the time she spent helping the resident off the clock, however, Stevens knows from reviewing her pay stubs that Mahan never fixed her time and she was not paid for the time spent helping the residents who had an emergency during her meal break.
Naomi Tullis
Naomi Tullis was employed as an RA at Defendant’s Harrisburg facility from February 2021 to October 2022. As an RA she was an hourly employee and paid at a rate of $17.00 an hour. Her duties were similar to those of the other RAs described above, and her affidavit mirrors theirs.
Defendant’s Affidavits
Defendant has included seven affidavits of its own from its employees. Tonya Griffith
Defendant included the affidavit of Tonya Griffith, Defendant’s human resources director since 2017. Griffith states that Plaintiff’s proposed class would include approximately 3,748 individuals, holding 12 different job titles, working three different shifts, and reporting to 30 different supervisors. Griffith discusses how different job titles require different job duties, and, depending on their different duties, an individual will respond to a resident’s needs in different ways, if at all. Griffith also discusses how the nature of an employee’s work is also impacted by the shift they work.
Regarding Defendant’s policy for non-exempt, hourly employees, Griffith states that Defendant requires such employees to be paid for all hours worked, including for the entire length of their meal breaks if they perform any work during such breaks. The policy provides, however, that any and all work, however performed, must be recorded in Defendant’s electronic timekeeping system, and failure to do so may subject an employee to discipline. Griffith states Defendant’s employees are trained on the system, and that to ensure they do not work off the clock, they are required to inform their supervisors of any discrepancies in their time cards prior to the end of their shifts or at the end of any pay periods. They are trained that they are responsible for the accuracy of their time cards and for notifying Defendant of any discrepancies. Defendant’s policy expressly forbids working off the clock, and employees are encouraged to contact management if they have questions or concerns. Defendant maintains an “open door” policy for reporting matters of concern, and employees are reminded of this policy by Defendant during their employ and in their training upon *17 hiring.
Regarding the meal break policy, Griffith states that Defendant’s hourly employees were generally instructed to clock in when they started their shifts, before they began working, and clock out when they finished their shifts. The policy requires employees to take a meal break of at least 30 minutes and to accurately observe and report those periods by clocking in and out. The policy also requires employees to inform their supervisors if they know in advance that they will not be able to take the break, and if they were unable or prohibited from taking the break. There is no requirement for employees to have their radios on or respond to alerts during their breaks. They are trained and instructed to coordinate and schedule their breaks so that there is adequate staffing in the facility at all times.
Regarding Defendant’s missed punch form policy, Griffith states that if an employee cannot take a full 30-minute lunch break, they must ensure that they were paid for the 30-minute, unpaid meal period by submitting a “missed punch form” or by verbally communicating with the facility’s business manager or director, and Defendant will then verify the information and pay the employee. This policy is communicated to all new hires during their orientation, is explained in the Employee Handbook, and is periodically discussed with facility and regional directors, who are instructed to remind hourly employees about the policy.
Also attached to Griffith’s affidavit are copies of missed punch forms submitted by Plaintiff and eight of the Plaintiff’s affiants, indicating they submitted missed punch forms on certain dates and that they were not deducted a meal break on those dates.
Lashonde Colbert
Lashonde Colbert works as a CNA and resident care coordinator (“RCC”) at Defendant’s Danville facility. In describing her duties as a CNA, Colbert’s duties were similar to those of the CNAs who submitted affidavits in support of Plaintiff.
Colbert states that at her initial orientation, she learned Defendant’s policy requires her to take one 30-minute meal break during her 8-hour shift and two 30 minute meal breaks during her 12-hour shifts. While she was a CNA, her supervisor always reminded her during shifts to take her full 30-minute meal break. In her current position as RCC, she reminds employees to take their uninterrupted 30-minute meal break. Some employees she supervises have expressed concerns that they will need to interrupt their meal break to attend to residents who need assistance, but Colbert tells them not to interrupt their break and that she will attend the to resident. When Colbert was a CNA, she was never instructed to skip a meal break. She had her meal break interrupted only once, and that was her own choice to assist a resident. She received pay for the extra time worked and was able to finish her meal break in full.
Colbert then discusses Defendant’s “missed punch form.” She states that the missed punch form has always been available for employees who do not take their lunch breaks. She learned how to fill out and submit the forms during her orientation and that they are readily available, short, and easy to complete. She has never been discouraged from filling out the form, and does not know of any other employee who was. She has also never worked “off the clock” and Defendant’s policies prohibit it.
Other Affidavits
The five remaining affidavits are from: Sharold Plush, AD at the Charleston, Illinois, facility since February 2019; Alice Crabtree, LPN at the Harrisburg facility from *19 2016 to 2021 and again from July 2023; Jen Piper, CNA at the Washington, Illinois, facility from 2014 to present; Cecilia Mendez, RA at the Morton, Illinois, facility since 2022; and Shaeylen Blasdel, a CNA at Defendant’s Pekin, Illinois, facility, since April 2021.
The duties listed by these affiants are comparable to the duties of Plaintiff’s affiants who held the same positions. But that is where the similarities end. Unlike Plaintiff’s affiants, Defendant’s affiants experiences more closely resembles that of Colbert: They had all been informed of Defendant’s missed punch form policy; they were aware of meal break practices at other of Defendant’s facilities; some had never been interrupted during meal breaks, but for those who had it was only once and they received full pay and credit for the time worked; they were paid for all time worked; and they were not required to work overtime.
Defendant’s Handbook
Defendant also attached a copy of its Handbook (#48-2). The meal break portion of the Handbook states the following.
The Company strives to provide a safe and healthy work environment and complies with all federal and state regulations regarding rest and meal periods. Please check with your supervisor regarding procedures and schedules for rest and meal breaks. The Company requests that employees accurately observe and record meal periods by clocking in/out.
Illinois: Meal breaks [of at least 20 minutes] are mandatory for all nonexempt employees who are scheduled or required to work a shift of at least 7.5 hours. Typically, your break will be scheduled for a reasonable time after you have started *20 your shift, but should not be scheduled more than five hours after your shift start. If you are scheduled to or anticipate working at least 7.5 continuous hours, you must ensure you take a meal break. If you know in advance that you may not be able to take your scheduled break or meal period, please let your supervisor know; in addition, notify your supervisor if you were unable to or prohibited from taking a rest or meal period at the soonest opportunity.
ANALYSIS
Plaintiff argues that conditional certification under § 216(b) of the FLSA should be granted and that her proposed notice and dissemination process is appropriate and tailored to effectuate the FLSA’s broad remedial purpose.
Conditional Certification
Plaintiff argues that conditional certification of the FLSA Collective should be granted because: (1) she has satisfied the minimal burdens of proof required at the notice stage; and (2) potentially individualized issues will not prevent company-wide conditional certification.
Defendant responds that Plaintiff has not met the standard to proceed collectively under § 216(b) because she cannot demonstrate that Defendant has a common policy or practice that violates the FLSA, nor can Plaintiff demonstrate that she is similarly situated to other members of the FLSA Collective with respect to any alleged violation of the FLSA. Defendant also argues that Plaintiff offers no common method of proving liability, rendering the proposed collective unmanageable.
In Reply, Plaintiff argues that the evidence it has provided in the form of the affidavits and Amended Complaint are more than sufficient to warrant conditional *21 certification. Plaintiff argues that Defendant is prematurely attempting to argue the merits of Plaintiff’s claims, which is improper at the conditional certification stage, and should wait until a later stage of the proceedings when discovery has been conducted and the court may consider the claims on the merits. To that end, Plaintiff argues that the existence of a written policy cannot defeat conditional certification, the court should exclude Defendant’s proffered affidavits, Defendant’s merits-based contradictory evidence cannot “override” that of Plaintiff, and Plaintiff’s claims are streamlined, not individualized.
Conditional Certification Standard
“If an employer fails to pay sufficient wages to its employees, the FLSA allows
employees to bring a collective action on behalf of themselves and ‘other employees
similarly situated.’”
Harwell-Payne v. Cudahy Place Senior Living, LLC
,
District courts have “wide discretion” in determining how such suits should
proceed.
Weil v. Metal Technologies, Inc.
,
“The Seventh Circuit has not identified a specific standard for certifying a
*22
collective action under the FLSA.”
Iannotti
,
The purpose of conditional certification is to determine the size and contour of
the group of employees who may become collective members and whether these
potential members are similarly situated.
Van Note
,
“A factual nexus that binds potential members of a collective action together is
sufficient to meet this burden.”
Iannotti
,
Significantly, at this initial stage, the court does not make merits determinations,
weigh evidence, determine credibility, or specifically consider opposing evidence
presented by a defendant.
Van Note
,
At the second step following discovery, the party opposing collective action
typically moves to decertify the class, and the court reevaluates the conditional
certification and determines whether there is sufficient similarity between the named
and opt-in plaintiffs.
Richards
,
This is the approach advocated by Plaintiff.
Defendant, on the other hand, appears to argue for a more holistic, rigorous
evidentiary approach, in which contradictory evidence, proffered by the defense at the
conditional certification stage, is weighed against that proffered by the plaintiff. To be
sure, some courts have adopted such an approach. In
Swales v. KLLM Transport Services,
Inc.
,
This court agrees with the approach of the court in
Richards
, which declined the
defendants’ invitation to apply the Fifth Circuit’s
Swales
framework or the more
recently established version from the Sixth Circuit in
Clark
. As noted by the court in
Richards
, “[w]hen presented with the issue, other courts throughout the Seventh Circuit
have refused to adopt
Swales
and/or
Clark
and have continued to adhere to the
two-step approach.”
Richards
,
The court would further note that, while it is true that the Seventh Circuit has not
directly endorsed or adopted the two-step approach, the court of appeals did discuss
the analysis in the context of a mandamus action in
In re New Albertsons, Inc.
, 2021 WL
4028428 (7th Cir. Sept. 1, 2021). In that case, the petitioners filed a petition for a writ of
mandamus with the Seventh Circuit, asking the court of appeals to review the district
court’s order granting the respondent’s motion for conditional certification. The district
court, in granting conditional certification, had declined to permit discovery, declined
to credit the petitioners’ evidence that the respondent was not similarly situated to most
of the FLSA Collective, and declinined their invitation to deviate from the two-step
process in light of the Fifth Circuit’s decision in
Swales
.
New Albertsons
, 2021 WL
4028428, at *1. The petitioners argued that their mandamus petition was the only
practical means to challenge widespread use of the two-step procedure to conditionally
certify collective actions.
New Albertsons
,
The Seventh Circuit began its analysis by noting that mandamus was a drastic
remedy, available only in the most extraordinary of circumstances, and to demonstrate
a clear right to the writ, “a litigant must show that the challenged order ‘so far exceed[s]
the proper bounds of judicial discretion as to be legitimately considered usurpative in
character, or in violation of a clear and indisputable legal right, or, at the very least,
patently erroneous.’”
New Albertsons
,
The court noted that it has “repeatedly said that district courts have ‘wide
discretion to manage collective actions[,]’” and that “the two-step process followed by
the district court is widely approved by other circuits and used in many district courts.”
New Albertsons
,
Thus, in the absence of a Seventh Circuit case overruling this long-applied
approach, the court finds no reason to depart from it, and now turns to the issue of
whether the potential plaintiffs are “similarly situated” for purposes of conditionally
*27
certifying the collective action. See
Richards
,
Whether Plaintiff’s Proposed Collective Action Should Be Conditionally Certified In order to conditionally certify the class, Plaintiff must meet her burden of making a modest showing that a class of similarly situated individuals who were victims of a common policy or plan that violated the law exists. See Van Note , 2024 WL 1994314, at *3.
Plaintiff defines the FLSA Collective as:
All current and former hourly patient facing care providers who worked for Villas of Holly Brook Senior Living, LLC, at any time from December 13, 2019, through the Final Disposition of this Matter (“FLSA Collective” or “FLSA Collective Members”).
Here, Plaintiff has alleged that Defendant had a common policy or practice of requiring its hourly employees, all of whom had as part of their duties a requirement to come to the assistance of residents whenever needed, to interrupt their mandatory 30- minute meal break if necessary to assist a resident. Plaintiff has alleged that when this occurs, and employees work through the meal break, Defendant would still deduct the 30 minutes from their wages, to make it look as though the employees received the meal break so that Defendant would not get into regulatory trouble for failing to provide a meal break. Even though the employees were working through their meal break and thus not actually receiving a meal break, Defendant would not compensate them for this work because they were officially “off the clock.” Thus, Plaintiff and the *28 FLSA Collective worked straight time and overtime hours for which they were not compensated at the rates required by the FLSA and Illinois Acts.
Plaintiff has submitted the affidavits of 11 patient-facing hourly employees, including herself, who worked for Defendant across seven locations in Illinois. Each affiant asserts that they were paid hourly by Defendant and required to assist residents whenever they were needed, including during their “off the clock” meal breaks. They all assert that they were not paid for interrupted meal breaks that lasted less than 20 minutes, and that no one from Defendant told them that they could be paid for such interrupted meal breaks. They all assert that they were required to work overtime hours each week.
All of the Plaintiff’s affiants assert that they complained to management or supervisors at Defendant about not being paid for interrupted meal breaks lasting less than 20 minutes, and several were informed that they still had to punch out during that time as if they had received the required uninterrupted meal break. Several were told that the reason for doing so was so that Defendant did not get in regulatory trouble.
Having reviewed the filings of the parties, the court finds that Plaintiff has
sufficiently demonstrated a factual nexus binding the potential Plaintiffs together as the
victims of a common policy or plan that violated the law. See
Van Note
, 2024
WL1994314, at *3;
Lucas v. JJ’s of Macomb, Inc.
,
Defendant argues that Plaintiff has failed to meet her burden of showing a common policy or plan or that there are similarly situated individuals to her whose rights under the FLSA have been violated by that common policy or plan. The court will take each of those arguments in turn.
Common Policy or Plan
Defendant first argues that Plaintiff cannot demonstrate that it has a common
policy or practice that violates the FLSA. Defendant argues that Plaintiff cannot “point
to any policy that is, on its face, unlawful.” Specifically, Defendant cites to
Tracy v. Dean
Witter Reynolds, Inc.
,
However, the absence of facially unlawful written policy, or the presence of a
lawful official written policy, does not doom Plaintiff at the conditional certification
stage. Again, “[a]t the notice/conditional certification stage, the Court does not
determine the legality of Defendant’s practice or evaluate the merits of the plaintiff’s
claim, but only determines whether the plaintiff has shown that he is similarly situated
*30
to the putative class members with respect to the nature of the alleged violations.”
Jewell v. Aarons, Inc.
,
Defendant’s contention that conditional certification should be denied because Defendant has a written policy that all non-exempt hourly associates working more than six hours a day are required to take a minimum thirty minute lunch break holds no water at this stage of the case. Nor does the corollary of this argument that violations of such a written policy must have necessarily resulted from isolated decisions by individual managers acting contrary to the express orders of their employer. Indeed, the existence of a formal policy of requiring employees to take a lunch break should not immunize the defendant where the plaintiffs have presented evidence that this policy was commonly violated in practice .
Jewell
,
Defendant also argues that Plaintiff and the affiants unilaterally disregarded
Defendant’s lawful policies of the missed punch form or requiring employees to clock
out for their meal breaks. However, this argument fails for the reasons stated above in
Jewell
, as “the existence of a formal policy of requiring employees to take a lunch break
should not immunize the defendant where the plaintiffs have presented evidence that
this policy was commonly violated in practice.”
Jewell
,
Further, as stated, at this stage the court is not weighing evidence or the
credibility of Plaintiff and the FLSA Collective, such as whether or not they were aware
of the missed punch form policy or their assertions that Defendant had knowledge of
the alleged violations; nor is it even specifically considering opposing evidence
presented by Defendant in the form its own affiants who state they were aware of and
*31
would utilize the policy. See
Van Note
,
Plaintiff is alleging, essentially, a payroll or payment practice that may not be
consistent with the meal break and/or missed punch form policy included in the
handbook. See
Harwell-Payne
,
Similarly Situated
Defendant next argues that Plaintiff has not met her burden of making a factual showing that she is similarly situated to potential members of the FLSA Collective, in that the alleged violations in this case stem from Plaintiff and the affiants’ “decentralized, discretionary decisions to disregard Defendant’s missed punch form policies.” Defendant argues that Plaintiff cannot make the modest showing that the FLSA Collective is similarly situated because: (1) Plaintiff’s affidavits lack personal knowledge and are limited to the affiants’ unique, individualized experiences; (2) the *32 undisputed evidence shows that Plaintiff’s and the affiants’ allegations are limited to their own experiences and do not apply to other potential FLSA Collective members; and (3) Plaintiff has failed to show that she is similarly situated to the others in the FLSA Collective regarding job positions, duties, or shifts.
First, concerning the affidavits’ lack of personal knowledge about what was
happening in facilities other than their own apart from conversations they supposedly
had with employees at other facilities, and conclusory allegations about violations at
other facilities, the court acknowledges that Plaintiff’s affidavits contain somewhat
“cookie-cutter” and conclusory assertions about alleged violations at facilities other
than the affiants’ own. However, “another word for ‘allegations lifted from a complaint
and repeated verbatim in a declaration’ is ‘evidence,’ and arguably weak evidence is
still evidence that the Court—again—may not weigh at this stage.”
Jirek
, 2024 WL
2207634, at *7, citing
Bergman v. Kindred Healthcare, Inc
.,
The court would also note that although the sample size of seven facilities
represented by Plaintiff’s affidavits is relatively small, this court has conditionally
certified a FLSA collective in a prior case involving just
two
locations, based on the
similarities between the facilities and the evidence presented by the plaintiff. See
Lucas
,
Next, as to “the undisputed evidence [that] shows that Plaintiff’s and the affiants’ allegations are limited to their own experiences and do not apply to potential FLSA Collective members[,]” Defendant relies entirely on comparisons between Plaintiff’s allegations and Defendant’s own affidavits that contradict Plaintiff’s claims, and thus Defendant’s argument is unavailing.
Again, “[a]t this stage, ‘[t]he court does not make merits determinations, weigh
evidence, determine credibility, or specifically consider opposing evidence presented by
a defendant.’”
Van Note
,
Finally, with respect to Defendant’s argument that Plaintiff and the FLSA
*34
Collective are not similarly situated because they have different job duties, positions, or
shifts, this argument must also fail. “Plaintiffs can be similarly situated for purposes of
the FLSA even though there are distinctions in their job titles, functions, or pay.”
Ruffolo v. LaSalle Group, Inc.
,
The court finds that Plaintiff has made the minimal showing that others in the
potential class are similarly situated to her. See
Van Note
,
Manageability
Defendant also raises a manageability argument, arguing that Plaintiff has
provided no common method of proving liability, rendering the proposed collective
unmanageable. Defendant warns that courts have conditionally certified cases
involving meal break policies only to later decertify those actions because
individualized determinations predominate, and that this court should make the
determination now to avoid incurring unnecessary expenditures. True enough, but the
court
always
has the option to reconsider its certification ruling following the
completion of discovery. See
Weil
,
Defendant also argues that Plaintiff has not met her burden of showing that she
is similarly situated because she has not demonstrated that she could show through
common evidence that the FLSA Collective performed compensable work during meal
breaks without compensation. But again, this argument goes more toward “what
happened and how often it happened,” which are “fact specific issues that are best
addressed at the second step of the process, where the court reevaluates the conditions
*36
certification to determine where there is sufficient similarity between the opt-in
plaintiffs.” See
Harwell-Payne
,
“The mere potential that individual issues may predominate after further
discovery does not preclude conditional certification of the class[,]” and at this stage,
Plaintiff has made the minimal showing necessary for conditional certification and
notice to the potential class members. See
Jirak
,
Notice
The court now turns to Plaintiff’s proposed Notice and Consent to Join Form
(#37-13). “Absent reasonable objections by either the defendant or the Court, plaintiffs
should be allowed to use the language of their choice in drafting the notice.”
Van Note
,
The court has reviewed the proposed Notice and Consent to Join Form. The
court does not find fault with the form, although it should be updated to account for the
proper date. There is also an insignificant typo identifying Defendant as “Holy Brook”
under subsection 6. Further, Plaintiff is ordered to remove the case caption from the top
of the Notice and replace it with her attorney’s letterhead, although Plaintiff may still
include the case number and title in her Notice. See
Lucas
,
One final point the court would note, the Notice is silent as to whether a
potential plaintiff can choose not to join this lawsuit, and instead file their own suit
against Defendant. Therefore, Plaintiff is ordered to add an option under subsection 4
or 5 alerting potential plaintiffs that, if they want different counsel, they may file their
own lawsuit rather than opting into this suit. See
Van Note
,
Defendant raises one objection to Plaintiff’s proposed Notice and Consent to Join
form, in that notifications should not be sent out via text message to the potential FLSA
Collective. However, “[a]uthorization of notice by text message is increasingly
common[,]” and, “[f]urther, ‘any moderate intrusion caused by such a text message [or
email] is outweighed by the interest in apprising all potential class members of this
*38
action.’”
Van Note
,
IT IS THEREFORE ORDERED:
(1) Plaintiff’s Motion for Conditional Certification and Court-Supervised Notice to Putative Collective Members (#37) is GRANTED. The court conditionally certifies a class of “All current and former hourly patient facing care providers who worked for Villas of Holly Brook Senior Living, LLC, at any time from December 13, 2019, through the Final Disposition of this Matter (‘FLSA Collective’ or ‘FLSA Collective Members’).” The court also approves Plaintiff’s Notice and Consent Form (#37-13) with the modifications set forth above. Plaintiff proposed a schedule including deadlines in her attached Proposed Order (#37-14). The court declines to adopt that schedule in this Order. The parties may work out that issue with the magistrate judge.
(2) The stay in this case is hereby LIFTED. This matter is referred to the magistrate judge for further proceedings in accordance with this Order. ENTERED this 8th day of July, 2024.
s/ COLIN S. BRUCE
U.S. DISTRICT JUDGE