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Miller v. Thedacare Inc.

United States District Court, E.D. Wisconsin

August 29, 2016

JUELAINE MILLER, et al, Plaintiffs,
THEDACARE INC., Defendant.


          William C. Griesbach, Chief Judge.

         Plaintiffs Juelaine Miller, Kathleen Albers, and Linda Auler were or are employed by Defendant ThedaCare, Inc., on an hourly basis at Defendant ThedaCare's Appleton Medical Center (“AMC”) or Theda Clark Medical Center (“Theda Clark”). ThedaCare operates a healthcare system of hospitals and medical clinics in northeastern Wisconsin. Plaintiffs allege that ThedaCare violated their rights under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., (FLSA) and the Wisconsin wage law, Wis.Stat. § 109.01, et seq., by not compensating hourly workers for all work performed and not compensating hourly employees for overtime. More specifically, Plaintiffs allege that Theda Clark maintains a policy that, among other things, contains an automatic deduction for unpaid meal periods while requiring employees to be “on-duty” or “on-call” during such periods and failing to pay employees for work during those periods. See Second Am. Compl. ¶ 2. By its terms or, alternatively, as applied, Plaintiffs claim that ThedaCare's policy deprives them of compensation for lunch breaks during which they perform work.

         Before me now is Plaintiffs' motion for conditional certification and court-authorized notice of their claim. As part of this motion, Plaintiffs request that this Court: (1) conditionally certify the proposed collective action pursuant to 29 U.S.C. § 216(b); (2) approve the Proposed Notice; (3) direct ThedaCare to produce the names and other information regarding all potential class members employed at ThedaCare's facilities; and (4) allow a sixty day opt-in period from the date of the mailing of the notice. Also before me is Plaintiffs' motion for leave to amend the complaint. For the reasons that follow, Plaintiffs' motion for leave to amend will be granted and Plaintiffs' motion for conditional class certification and court-facilitated notice and discovery will be granted in part.


         There are three named plaintiffs in this lawsuit: Kathy Albers, Linda Auler, and Juelaine Miller. Kathy Albers works as a unit resource associate/administrative associate at Theda Clark and AMC. Linda Auler works as an administrative associate at Theda Clark. Juelaine Miller works as a paramedic at Theda Clark and AMC. Additionally, nineteen other individuals have consented to join as FLSA opt-ins. Together, the named and opt-in plaintiffs all work or have worked at either AMC or Theda Clark or both.

         ThedaCare operates a healthcare system of seven hospitals and approximately thirty-seven medical clinics in northeast Wisconsin. In ThedaCare's hospitals, employees work in dozens of different departments (i.e., emergency medicine, surgery, oncology, behavioral health, inpatient/outpatient rehabilitation, birthing and many more). Over the past three years those departments have been managed and supervised by hundreds of different individuals. ThedaCare employs approximately 3, 000 nurses, paramedics, certified nursing assistants (“CNAs”), and other hourly employees who provide direct patient care at its hospitals, in addition to approximately 100 additional hourly employees who work as registrars/administrative associates, unit resource associates, or hourly employees within the Staffing Resources department.

         ThedaCare pays its non-exempt direct care providers, administrative associates, unit resource associates, and schedulers on an hourly basis. During the three years prior to the filing of this lawsuit, ThedaCare had employee pay and break policies which were uniformly applied to employees at each of its hospitals.[1] One of ThedaCare's uniform policies is entitled: “Pay: General Information And Employee Responsibilities” and is applicable at “All Locations.” ECF No. 33-4 at 10. This general policy includes a “Breaks and Lunches” section which states:

As a general practice, employees are scheduled for a half hour lunch. Breaks are discretionary and are subject to the pressures of the daily workload. Managers and supervisors are responsible for the scheduling of breaks and lunches. See the separate policy on Breaks and Lunches for more information.

Id. at 11. The separate “Breaks and Lunches” policy referenced above applies to “All Locations” and provides additional detail about ThedaCare's policy on lunches and breaks. Wilcox Exhs. 3 & 4, ECF No. 33-5. Regarding lunches, the policy states:

As a general practice, employees who work at least a 6 hour shift are scheduled for a half-hour unpaid lunch. This half-hour will be deducted by the time and attendance system. . . . If employees' shift length qualifies them for an unpaid lunch break that they are required to forego, employees must record a “no lunch” entry in accordance with the site's timekeeping procedures. Managers or their designee are responsible for oversight and approval of “no lunch” situations.

Id. The policy then goes on to discuss 15 minute paid breaks, which are “discretionary and are subject to the pressures of the daily workload.” Id. The policy specifically states that “[e]mployees may not leave the premises during a break.” Id.

         After explaining break rules, the policy proceeds to discuss breaks and lunches generally:

The employee should exercise discretion in taking breaks and lunches in such a way that both the needs of the employee and the needs of the organization are met. In some work areas, managers or their designees may designate breaks. However, patient load along with professional practice and team collaboration, generally determines the practicality of breaks.

Id. The policy goes on to proscribe combining a break with lunch, with another break, or the beginning or close of the work day. Though the policy specifically prohibits going off the premises during breaks, the policy allows employees to leave the premises for lunches so long as they properly record the time away: “Generally, employees are not required to record the lunch period if they remain on the premises. However, if an employee leaves the premises, the lunch period must be recorded using the appropriate record keeping method for the site (i.e., time clock, manual timecard, etc.).” Id. Finally, the policy states that conflicts regarding breaks should be brought to the employee's manager, along with any questions or concerns regarding the overall policy. Id.

         Plaintiffs filed this lawsuit on April 29, 2015. Nearly ten months later, on February 19, 2016, Plaintiffs filed the present motion for conditional class certification and notice. Prior to the filing of the present motion, the parties engaged in significant discovery, including: ThedaCare's production of over 7, 000 pages of documents, the depositions of all named Plaintiffs, and the deposition of two of ThedaCare's corporate representatives. Plaintiffs presently seek conditional certification of a class of similarly situated employees defined as:

All persons who have been or are employed by a ThedaCare hospital on an hourly basis as direct patient care providers, administrative associates, unit resource associates and employees of the Staffing Resources department basis [sic] at any time three years prior to the commencement of this lawsuit to the present whose scheduled hours included an automatic deduction for unpaid meal breaks and who were denied minimum wage or overtime wages for hours for compensable “on call” time and/or hours performing work during unpaid meal periods.

         Pls.' Br. in Supp. 3-4, ECF No. 32. The parties have filed numerous affidavits and declarations of ThedaCare employees along ...

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