United States District Court, D. Kansas
MELISSA FRENCH, on behalf of herself and all others similarly situated, Plaintiff,
MIDWEST HEALTH, INC., Defendant.
MEMORANDUM AND ORDER
JULIE A. ROBINSON, District Judge.
Plaintiff brings this putative collective action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b), against Defendant Midwest Health, Inc. ("Midwest Health"), claiming violations of the FLSA's minimum wage and overtime pay requirements. Plaintiff is joined by nineteen current and former Midwest Health employees from eight different facilities in Kansas, Iowa, and Nebraska who have opted in to this lawsuit ("Opt-in Plaintiffs"). Specifically, Plaintiff alleges that because Defendant automatically deducts a 30-minute meal break ("Meal Break") from each shift of six or more hours, and she and many employees often work during that period and receive no compensation for said work, the practice is therefore in violation of the FLSA. This matter is before the Court on Plaintiff's Motion for Conditional Collective Action Certification and Notice (Doc. 6). For the reasons explained below, Plaintiff's motion to conditionally certify is granted in part and denied in part. Specifically, the Court will conditionally certify the following class:
All hourly employees who worked for Defendant's care facilities during the last three years and were subject to the 30-minute automatic meal deduction policy.
As discussed more fully below, the conditionally certified class is altered from the proposed class, the Court therefore denies Plaintiff's request to approve its proposed notice and directs the parties to confer, attempt to agree on a proper notice and consent-to-join form, and resubmit the forms for the Court's approval. Finally, the Court grants Plaintiff's request for putative plaintiffs' names and contact information.
An action under the FLSA may be brought "against any employer... by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." Unlike a class action under Federal Rule of Civil Procedure 23, to participate in an FLSA collective action, all plaintiffs must "give [their] consent in writing to become such a party, " and it must be "filed in the court in which such action is brought."
Before notice is sent to putative plaintiffs to inform them of the pending action, it must be conditionally certified as a collective action. The court may certify an opt-in collective action so long as the aggrieved employees are similarly situated. Section 216(b) does not define "similarly situated." The Tenth Circuit has approved an ad hoc case-by-case basis for determining whether employees are "similarly situated" for purposes of § 216(b). This involves a two-step inquiry. The first step occurs at the "notice stage" of the proceedings. Here, the court determines if certification is proper for purposes of sending notice of the action to potential collective action members. At this stage, the court "requires nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan." This standard is lenient and typically results in conditional certification. In reviewing a motion for conditional certification, the court does not weigh the evidence, resolve factual disputes,  or rule on the merits of plaintiffs' claims. Generally, courts in this District have limited the scope of their review on a motion for conditional certification to the allegations in the Plaintiffs' Complaint and supporting affidavits.
The second step-requiring the court to apply a stricter standard to assure that plaintiffs are actually similarly situated-comes after discovery is complete, and is usually prompted by defendants filing a motion to decertify.
Plaintiff filed this action on December 18, 2014. In support of the allegations in the Complaint, Plaintiff attached to her motion declarations from herself and twelve of the nineteen Opt-in Plaintiffs, setting forth that Defendant Midwest Health owns, operates, and/or manages at least forty-two skilled nursing, assisted living, and independent living facilities in Kansas, Nebraska, Iowa, and Oklahoma. The following facts are alleged in Plaintiff's Complaint and declarations and are summarized as follows:
Defendant had a policy of automatically deducting a 30-minute meal break from each shift of six or more hours whether or not a full, uninterrupted meal break was actually taken. During these uncompensated periods, Plaintiff and other employees often worked, or were interrupted with work, and were not compensated, subjecting hourly employees to off-the-clock work. Defendant's hourly employees, according to Plaintiff, include but are not limited to: registered nurses, charge nurses, Certified Nurse Aides ("CNAs"), Certified Medication Aides ("CMAs"), dietary aides, cooks, activities directors, activities aides, and housekeeping and maintenance personnel. Defendant's nursing home and assisted living employees, as well as Monarch Transportation Aides employees, are subject to the same timekeeping system and pay policies. Twelve of the Opt-in Plaintiffs offer sworn testimony that they were subject to Defendant's personnel policies and procedures, including the Meal Break. Plaintiffs affirm that they each have personal knowledge that the other hourly employees also performed work during their unpaid meal periods due to Defendant's Meal Break policy. Plaintiff further provides a Midwest Health Employee Handbook ("Employee Handbook") which references the policy in question.
Plaintiff seeks compensatory and liquidated damages under § 216(b), interest and attorneys' fees and costs allowed by § 216(b). Since this action was commenced, nineteen Plaintiffs have opted in by filing "Consent to Join" forms with the Court.
A. Conditional ...