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Ricard v. KBK Services, Inc.

United States District Court, W.D. Wisconsin

June 1, 2016

ANDREW RICARD, TIM MACKAY, On behalf of themselves and all others similarly situated, Plaintiffs,
v.
KBK SERVICES INC., Defendant.

          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Plaintiffs Andrew Ricard and Tim Mackay accuse their former employer, defendant KBK Services Inc., of underpaying employees. Plaintiffs seek to represent a collective action under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-19, and a class action under Wisconsin wage and hour laws, Wisconsin Statutes § 109.03 and Wisconsin Administrative Code DWD § 272.12. Plaintiffs have moved to certify their proposed state-law class under Federal Rule of Civil Procedure 23, Dkt. 68, which the court will grant. Defendant has moved to decertify plaintiffs’ FLSA collective action, Dkt. 78, which the court will deny.

         BACKGROUND

         Plaintiffs work on construction projects located through northern Wisconsin. They are usually assigned to work on one project per week, but sometimes they work on multiple projects during a given week. When a jobsite is more than 90 miles away from an employee’s home, defendant will pay for a motel room for the project’s foreman, but not for any other employees. On occasion, employees arrive early to help load trucks with construction equipment, and then they drive the trucks to the jobsites. Employees are allowed, space permitting, to stay overnight at another of defendant’s shops if a jobsite is located nearby. When they do so, they sometimes help unload trucks or pick up supplies at the end of the workday.

         Employees are required to clock in on arrival at their assigned jobsite and to clock out when they leave the site for the night. Employees may also count time spent commuting from one jobsite to another as work time when they perform work on both sites during the same day. These are the only hours that are tracked, and the only hours that appear on an employee’s timecard. Thus, generally speaking, hours spent commuting or performing work activities at defendant’s shops are not tracked or counted as work time, and those hours are therefore not paid or used to calculate overtime pay.

         The court has jurisdiction over the FLSA claims under 28 U.S.C. § 1331, and over the state law claims under 28 U.S.C. § 1367.

         ANALYSIS

         Plaintiffs have moved for class certification of the state law claims under Rule 23. The parties stipulated to conditional certification of a FLSA collective action, which defendant now moves to decertify. Defendant contends that the named plaintiffs and the proposed class are not similarly situated, precluding resolution of their claims on a class-wide basis. Because plaintiffs meet all requirements for both class certification under Rule 23 and collective action certification under the FLSA, the court will grant plaintiffs’ motion to certify the Rule 23 class and deny defendant’s motion to decertify the FLSA collective action.

         A. Rule 23 class certification of state-law claims

         Plaintiffs propose a Rule 23 class of:

all KBK employees who, during the time period of April 18, 2013 and thereafter, traveled at least 90 miles from their home to work on a KBK jobsite, and was [sic] not paid for all of their travel time between their home and the KBK jobsite and/or did not have all of their travel time counted as hours worked in determining their eligibility for overtime pay.

         This definition includes one potential plaintiff whose claim is barred by the two-year statute of limitations for wage claims under Wisconsin Statute § 893.44(1). That class member last traveled at least 90 miles to one of defendant’s projects on May 10, 2013, and he received a paycheck for that work on May 16, 2013, when his claim accrued. His claim was extinguished two years later, on May 16, 2015, but plaintiffs did not bring this case until May 19, 2015. His claim is thus time barred and the court will revise the definition as follows:

all KBK employees who, during the time period of May 19, 2013 and thereafter, traveled at least 90 miles from their home to work on a KBK jobsite, and were not paid for all of their travel time between their home and the KBK jobsite or did not have all of their travel time counted as hours worked in determining their eligibility for overtime pay.

         The court will certify a class action only if, “after a rigorous analysis, ” the court is satisfied that plaintiffs have met the requirements of Rule 23. Davis v. Hutchins, 321 F.3d 641, 649 (7th Cir. 2003). Under Rule 23(a), the proposed class must satisfy the requirements of numerosity, commonality, typicality, and adequacy of representation. Because plaintiffs seek monetary damages, the class must also satisfy Rule 23(b)(3), which requires that: (1) common ...


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