United States District Court, W.D. Wisconsin
ANDREW RICARD, TIM MACKAY, On behalf of themselves and all others similarly situated, Plaintiffs,
KBK SERVICES INC., Defendant.
OPINION & ORDER
D. PETERSON District Judge
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.
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.
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.
court has jurisdiction over the FLSA claims under 28 U.S.C.
§ 1331, and over the state law claims under 28 U.S.C.
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
Rule 23 class certification of state-law claims
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.
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
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.
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 ...