CHARLES P. KOCORAS, District Judge:
Plaintiffs Michelle Creal, Kasandra Murphy, and Felicia Wright (collectively, "Plaintiffs") filed this three-count action in June 2013 against Defendant Group O, Inc. ("Group O") seeking overtime wages under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. (Count I) and Illinois wage laws (Counts II and III). Plaintiffs allege that "Group O has an unlawful policy or practice of rounding employees' swipe-in and swipe out times in a manner that almost always benefits Group O," and that Plaintiffs worked before and after their shifts, and during unpaid meal periods, without overtime pay. Compl., Dkt. 1, ¶ 7. The Court conditionally certified Plaintiffs' FLSA claim in May 2014 (Dkt. 48), after which 91 additional plaintiffs opted in. Pltf. Opp., Dkt. 123, at 1. Now before the Court is Group O's Motion to Decertify (Dkt. 108). For the following reasons, that motion is granted.
Between 2010 and 2013, Group O was a provider of logistics, manpower, and staffing services to Caterpillar, Inc. ("CAT") at its plant in Joliet, Illinois. Pltf. Opp., Dkt.
Plaintiffs acknowledge that Group O's policies "stated that employees of Defendant were prohibited from working before or after their scheduled shifts unless they received approval to work overtime." Id. at 5-6. Plaintiffs also acknowledge that employees "were required to be present at their work stations at the beginning of their shifts." Id. at 5. Plaintiffs complain, however, that "as a result of Group O's policies as applied in the workplace, employees frequently began the undertaking of their assigned job duties prior to their scheduled start time, and continued working after their scheduled end time." Id. at 6. Specifically, Plaintiffs contend that Group O "instructed its employees to punch-in as much as fourteen minutes prior to the scheduled start of their shift," that employees "were expected to be working... once in the CAT facility," and that they "were also directed to complete their assignments before punching-out for the day and as such, would often have to continue working after their scheduled shift-end time." Id. at 5-6. According to Plaintiffs, they were not compensated for this pre-and post-shift work, because Group O "programmed its Kronos system to automatically round an employee's clock-in times to the employee's scheduled start time when the employee punched in less than fifteen (15) minutes prior to his or her scheduled start time," and "to automatically round an employee's clock-out times to the employees scheduled shift end time when the employee punched out less than fifteen (15) [minutes] after his or her scheduled end time." Id. at 6-7. Finally, Plaintiffs further contend that they "were also frequently required to work through unpaid meal periods, in order to keep up with a varied, unpredictable, and generally heavy workload." Id. at 9.
Group O disputes any such "early-in policy," and asserts that its employees were instead "instructed to punch in
Group O similarly contends that "Plaintiffs were unable to identify any common policy or command that they work unpaid overtime" after their shifts. Def. Mem., Dkt. 109, at 18. According to Group O, the evidence "shows that if Plaintiffs needed to work past their shift, in accordance with Group O policy they would ask for and get approved overtime for which they were paid. Id. For instance, several Plaintiffs and opt-in plaintiffs (including those cited by Plaintiffs to support their post-shift work claim — Creal and Crisler, see Pltf. Opp., Dkt. 123, at 18) admitted to being paid for post-shift work,
Lastly, Group O further disputes that Plaintiffs were "required to work during their lunch breaks as a policy or practice of Group O," and asserts that "any missed or interrupted lunches were unrelated occurrences." Def. Mem., Dkt. 109, at 16. For support, Group O points to its Employee
Citing the foregoing discovery taken since this Court's conditional certification of Plaintiffs' FLSA claim, Group O now moves to decertify the collective for that claim. See Dkt. 108. Plaintiffs oppose, noting that "[t]he parties in this current litigation are also involved in a state class action litigation in the Circuit Court of the Twelfth Judicial Circuit of Will County filed by the named Plaintiffs (Case No. 2012L000138) alleging violations of the Illinois Minimum Wage Law and the Illinois Wage Payment and Collection Act by Defendant," in which the presiding judge "ruled in favor of Plaintiffs' Motion for Class Certification and certified a class pursuant to Illinois state law." Pltf. Mem., Dkt. 123, at 4 (citing Murphy v. Group O, No. 2012L000138 (Cir. Ct. Will Cnty. filed Feb. 21, 2012)).
This Court expresses no view on the state court's class certification ruling or on Plaintiffs' state law claims in the Will County action (also brought as Counts II and III in this case). See Dkt. 1.
As discussed in the Court's May 2014 Order (Dkt. 48), the FLSA allows
"Plaintiffs seeking to show that they are similarly situated at the second stage of a collective action under Section 216(b) of the FLSA, `must demonstrate similarity beyond simply claiming that the FLSA has been violated; an identifiable factual nexus that binds the plaintiffs together as victims of a particular violation of the overtime laws must be present." Id. at 10 (quoting Russell v. Ill. Bell. Tel. Co., 721 F.Supp.2d 804, 812 (N.D.Ill.2010)). Thus, at the second step of the FLSA analysis (the current posture of this case), "a court reevaluates the appropriateness of certification after members of the collective action have opted in and the parties have conducted discovery." Elder v. Comcast Corp., No. 12 C 1157, 2015 WL 3475968, at *5 (N.D.Ill. June 1, 2015). "Once it is known which employees will be part of the class, the court must reevaluate the conditional certification to determine whether there is sufficient similarity between the named and opt-in plaintiffs to allow the matter to proceed to trial on a collective basis." Id. (quoting Rottman v. Old Second Bancorp, Inc., 735 F.Supp.2d 988, 990 (N.D.Ill.2010)).
This determination requires consideration of several factors: "(1) whether the plaintiffs share similar or disparate factual and employment settings; (2) whether the various affirmative defenses available to the defendant would have to be individually applied to each plaintiff; and (3) fairness and procedural concerns." Id. (quoting Franks v. MKM Oil, Inc., No. 10 C 00013, 2012 WL 3903782, at *10 (N.D.Ill. Sept. 7, 2012)); see also Pltf. Mem., Dkt. 123, at 3. The Court considers these factors with respect to Plaintiffs' claims for (1) unpaid pre-and post-shift work, and (2) work during unpaid meal periods, in turn below.
I. Pre- and Post-Shift Work
Plaintiffs' FLSA collective seeking overtime wages for pre-and post-shift work falters first for lack of a "common policy or plan that violated the law" and, correspondingly, for lack of "an identifiable factual nexus that binds the plaintiffs together as victims of a particular violation of the overtime laws." See Pltf. Mem., Dkt. 123, at 3, 10 (quoting cases). As to the first, Plaintiffs argue that they have "sufficiently identified a common policy or practice" of Group O "rounding its employees' punch-in and punch-out times." Id. at 13. But as Group O correctly asserts, "the law does not proscribe the rounding of non-work time." Def. Mem., Dkt. 109, at 25. Rather, a rounding practice "will be accepted, provided that it is used in such a
The pertinent question here, then, is whether this "factual inquiry" (whether Group O's rounding policy "was applied in such a manner that it actually resulted in unpaid work") is so "individualized" that "there is no efficiency gained by trying all the factual questions and defenses in one trial." Id.; Adair, 2008 WL 4224360, at *12 (plaintiffs and putative collective members must be "similarly situated as victims of a common illegal rounding policy"). Plaintiffs' collective seeking pre-and post-shift overtime wages fails on this score as well, for lack of "an identifiable factual nexus that binds the plaintiffs together as victims of a particular violation of the overtime laws." See Pltf. Mem., Dkt. 123, at 10 (quoting Russell, 721 F.Supp.2d at 812). Plaintiffs attempt to supply such a nexus by asserting that Group O employees "were instructed to clock in 10 to 15 minutes prior to the start of their scheduled shifts," "were expected to be working" once "clocked in," and "were also directed to complete their assignments before punching-out for the day." Pltf Mem., Dkt. 123, at 5-6. From these assertions, Plaintiffs argue that "employees frequently began the undertaking of their assigned job duties prior to their scheduled start time, and continued working after their scheduled end time," but were not compensated for this time when their punch-in and punch-out times were rounded off. Id. at 6-8. But the record supports no such "factual nexus that binds the plaintiffs together."
As discussed above, the record demonstrates no Group O "early-in" policy, and instead shows that its employees could punch in "up until" their shift start-time, with some employees confirming that they were told
The record thus "shows the opposite" of what is required to maintain collective certification; namely that Group O employees "were required to clock in early or clock out late such that it resulted in a failure to compensate." See Kelly, 2015 WL 3464131, at *4 (policy providing that employees "may clock in 7 minutes before/after the beginning/end of your shift without discipline" demonstrated no "requirement to clock in before their shift began or clock out after their shift ended"). On the contrary, where Plaintiffs do claim to have worked before or after their shifts without compensation, Group O argues convincingly that they did so under "unique circumstances" depending upon their position, responsibilities, supervisor, and other factors. See Def. Mem., Dkt. 109, at 1-2, 12-13, 18, 27-28. Each such claim would require a separate determination of whether the employee was performing tasks that are compensable — as opposed to ordering food, eating, having coffee, socializing, reading, or smoking (see id. at 6-7, 24) — as well as any affirmative defenses raised by Group O — such as whether any time spent working was excludable under the Portal to Portal Act
As in Elder and Marshall, the need for such individualized inquiries precludes "a common answer to the question of whether
Unlike the sales and service employees in Russell, Plaintiffs and the 91 opt-in plaintiffs here "worked in twenty-seven different positions" — including "clerks, various types of forklift operators, spotters, kitters, pickers, supervisors, leads and storeroom managers" — and thus had "different work duties, work locations, shifts and supervisors." See Def. Mem., Dkt. 109, at 11-12. Some "could leave at the end of their shift and employees on the next shift would continue their work," while others had no ready replacement. Id. at 12. Some were "tied to particular location[s]," while others "could go almost anywhere in the building and work any position." Id. Some had significant "travel times from the timeclocks to their workstations because of the vast size of the CAT facility," while some were just a minute or two away. Id. at 13. These differences bear heavily on Plaintiffs' claims that they were required to punch-in early or work late. And even Plaintiffs' brief demonstrates the impact of different supervisors on their claims, complaining about only a few of the 29 to whom Plaintiffs and the opt-in plaintiffs reported, and one (Tracy Smith) numerous times. See Pltf. Mem., Dkt. 123, at 15-16, 18, 20-22, 25; see also Russell, 721 F.Supp.2d at 815 (acknowledging decertification in cases where "one or relatively few managers gave the unlawful instruction").
The Russell court was careful to distinguish just such cases, where a "variety of job duties" and "disparate individualized claims" are "difficult for the court to manage collectively." Russell, 721 F.Supp.2d at 811 n. 2, 815. Accordingly, not only is
II. Unpaid Meal Breaks
Plaintiffs' collective seeking overtime wages for work during unpaid meal periods fails for similar reasons. Once again, this collective falters at the outset for lack of a Group O "common policy or plan that violated the law," since it is undisputed that Group O's employee manual instructed employees to take their "full-allotted time for your meal period" and "not perform any work during your meal period." See supra note 4; see also Pltf. Mem., Dkt. 123, at 15-16 (acknowledging policy). Indeed, as noted above, several Plaintiffs have admitted that they knew of this policy, either because they read it in the employee manual or were told by their supervisor. See supra note 5. Like Group O's rounding policy, this meal deduction policy similarly provides no support for Plaintiffs' claims because, "in and of itself," it "does not violate the FLSA." Camilotes v. Resurrection Health Care Corp., 286 F.R.D. 339, 350 (N.D.Ill.2012). "As such, that policy cannot, without more, bind Plaintiffs together for purposes of the `similarly situated' inquiry." Id.
Plaintiffs attempt to remedy this problem by arguing that the "mere existence of a written policy" should not "shield" an employer from liability "when such a policy was not consistently enforced." Pltf. Mem., Dkt. 123, at 16. But inconsistent enforcement falls far short of the "identifiable factual nexus that binds the plaintiffs together as victims of a particular violation of the overtime laws" that even Plaintiffs acknowledge is needed to retain collective certification. See id. at 10 (quoting Russell, 721 F.Supp.2d at 812). Nor does the record evidence any such common violation of Group O's meal policy that could bind Plaintiffs and the opt-in plaintiffs together here. For instance, several opt-in plaintiffs who claim to have worked during their meal periods have admitted that they did so of their own accord (indicating that they were not required to do so by Group O or its management), see supra note 6; and that they knew of no other employees who did so (indicating that the practice was not common).
Equally problematic for Plaintiffs' unpaid meal collective (and much like their collective seeking overtime wages for pre-and post-shift work), the record also shows that their overtime claims for work during unpaid meal breaks (and Group O's defenses thereto) are highly individualized. As an initial matter, all of the same differences in employee positions, job duties, and supervisors discussed above (see supra Part I) bear equally on Plaintiffs' meal break claims, since such differences likewise lead to "variation in the frequency, nature and
Also of note, while Ms. Creal and one opt-in plaintiff say they complained to their supervisors about working through meal periods, see Pltf. Mem., Dkt. 123, at 25, other opt-in plaintiffs admitted that Group O was not so informed about their mealtime work.
For the foregoing reasons, the Court grants Defendant Group O's Motion to Decertify FLSA Collective Action (Dkt. 108), and the FLSA claims of the 91 plaintiffs who have opted into this action (see Dkt. 110-4 at Def. Ex. 30) are dismissed without prejudice. Plaintiffs' pending Motion for Partial Summary Judgment (Dkt. 112) is