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Ehmann v. Pierce Manufacturing, Inc.

United States District Court, E.D. Wisconsin

October 12, 2016

ERIC EHMANN, on behalf of himself and all others similarly situated Plaintiff,


          William C. Griesbach, Chief Judge United States District Court

         Plaintiff Eric Ehmann brought this action against his employer, Pierce Manufacturing, Inc., on behalf of himself and other similarly situated employees, who he claims did not receive compensation or overtime compensation for all hours worked in violation of the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. (FLSA), and the Wisconsin wage law, Wis.Stat. § 109.01, et seq. Presently before the Court is Ehmann's motion for conditional certification and court-authorized notice of his claim. As part of this motion, Ehmann requests 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 Pierce to provide the addresses, telephone numbers, email addresses, and dates of birth of all putative class members; and (4) direct Pierce to post the notice in its Wisconsin locations. For the reasons that follow, Plaintiffs' motion for conditional class certification and court-facilitated notice will be granted in part and denied in part.


         Ehmann is the sole named plaintiff in this lawsuit, but 360 other individuals have consented to join as FLSA opt-ins. Together, the named and opt-in plaintiffs all work or have worked at Pierce. Pierce manufactures firetrucks and rescue vehicles and operates facilities in Appleton and Weyauwega, Wisconsin. Pierce's manufacturing workforce amounts to over 1, 600 individuals, comprised of Pierce employees and contracted workers placed at Pierce through Kelly Services, Inc. (D. Haase Decl. ¶ 3, ECF No. 94.) Pierce pays these workers, termed “production employees, ” on an hourly basis. (Id. ¶¶ 3-4.) In February 2016, Pierce paid production employees $26.73 per hour. (Id.) Production employees receive time and a half for all time worked beyond their regularly-scheduled shift and for all hours worked on Saturdays. (Id.) Pierce also pays production employees double time for working on Sundays. (Id.)

         In 1991, production employees worked either first or second shift. (Herzfeldt Decl. ¶ 4, ECF No. 95.) First shift employees worked 8.5 hours with two 10-minute paid breaks and one 30-minute unpaid meal break. (Id. ¶ 5.) Second shift employees worked 10.5 hours, and their shift also included two 10-minute paid breaks and one 30-minute unpaid meal break. (Id.) Pierce received several requests from production employees to shorten their lunch break so that they could leave work earlier. (Id. ¶¶ 6-9.) In response to these requests, Pierce shortened the meal period by 10 minutes and eliminated one of the 10 minute breaks, shortening the employees' shifts by 20 minutes. (Id. ¶ 11; ECF No. 94-1.) Accordingly, first shift employees worked 8 hours and 10 minutes and second shift employees worked 10 hours and 10 minutes. (Herzfeldt Decl. ¶ 11, ECF No. 95.) Pierce notified production employees that under this new schedule, they would only be paid for half of their 20 minute meal break. (Id. ¶ 15.)

         Over the years, Pierce modified shift schedules to accommodate changing work processes and increasing production demands. (D. Haase Decl. ¶ 9, ECF No. 94.) By 2016, production employees worked one of fifty-seven scheduled shifts. (Id.) In late 2015, contract workers raised concerns about not being compensated for their entire meal break. (Id. ¶ 11.) To minimize schedule complexity and to address these employees' concerns, effective February 21, 2016, Pierce again changed its production employees' shift schedules by shortening their shifts by 10 minutes. (Id. ¶ 12-13; ECF No. 94-1.) As a result, production employees worked fixed 8, 10, or 12 hour shifts and all of the breaks accompanying each shift were paid. (D. Haase Decl. ¶ 13, ECF No. 94.)

         Ehmann, a contracted worker employed by Kelly Services, was assigned to work as an Assembler at Pierce's American Drive, Appleton, Wisconsin location beginning in August 2015. (Id. ¶ 6.) Ehmann filed this lawsuit on February 29, 2016, eight days after Pierce's new schedule became effective. He asserts that prior to the schedule modification, he worked a total of forty-four hours and fifty minutes each workweek but was not compensated for fifty minutes each week. Ehmann presently seeks conditional certification of a class of similarly situated employees defined as:

All current and former Production employees employed by or placed at Defendant, Pierce Manufacturing, Inc., in the State of Wisconsin between February 29, 2013 and February 21, 2016, who have not been compensated for all hours worked in excess of forty (40) hours in a workweek as a result of impermissible time shaving by Defendant.

(Pl.'s Br. in Supp. at 1, ECF No. 86.)


         I. Conditional Certification

         The FLSA permits collective actions “against any employer . . . by any one or more employees for and on behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). Unlike a typical class action suit under Federal Rule of Civil Procedure 23, where an unwilling plaintiff must “opt out” of the class, the FLSA requires employees or former employees to “opt in” to the class by giving written consent to become a party to the collective action. Woods v. N.Y. Life Ins. Co., 686 F.2d 578, 579-80 (7th Cir. 1982) (explaining differences between collective action under the FLSA and class action certification pursuant to Rule 23). District courts may, in their discretion, implement this “opt in” procedure by facilitating notice to potential plaintiffs to a FLSA collective action. See Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989); Woods, 686 F.2d at 580. “The critical inquiry in determining whether a court should exercise its discretion to authorize the sending of notice to potential plaintiffs is whether the representative plaintiff has shown that she is similarly situated to the potential class plaintiffs.” Austin v. CUNA Mut. Ins. Soc., 232 F.R.D. 601, 605 (W.D. Wis. 2006). Generally, in order to determine whether the representative plaintiff is “similarly situated” to potential opt-in plaintiffs, this Court follows a two-step certification approach. Adair v. Wisconsin Bell, Inc., No. 08-CV-280, 2008 WL 4224360, at *8 (E.D. Wis. Sept. 11, 2008).

         First, the court examines whether the plaintiff has demonstrated a “reasonable basis” for believing that he is similarly situated to potential class members. Id. at *3. At the first stage, the plaintiff must make “at least a modest factual showing that such collective action is appropriate.” Id. at *4. The plaintiff may present factual support in the form of affidavits, declarations, deposition testimony, or other documents in order to demonstrate some “factual nexus between the plaintiff and the proposed class or a common policy that affects all the collective members.” Nehmelman v. Penn Nat'l Gaming, Inc., 822 F.Supp.2d 745, 750 (N.D. Ill. 2011). Though the conditional certification stage is a lenient standard, it is not a “mere formality.” Adair, 2008 WL 4224360, at *3. Because a plaintiff's “discovery demands upon conditional certification may impose a ‘tremendous financial burden to the employer, '” courts must be careful to guard against wasting the parties' time and resources where certification is not appropriate at the outset. Id. at *4 (quoting Woods, 686 F.2d at 581). If the class is conditionally certified, notice may be sent to other potential class members and discovery may proceed.

         At step two, usually on the defendant's motion for decertification, the court must determine whether plaintiffs who have opted in are, in fact, similarly situated. Brabazon v. Aurora Health Care, Inc., 10-CV-714, 2011 WL 1131097, at *2 (E.D. Wis. Mar. 28, 2011). At the second stage, the court will assess whether continuing as a collective action will provide ...

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