United States District Court, E.D. Wisconsin
ERIC EHMANN, on behalf of himself and all others similarly situated Plaintiff,
PIERCE MANUFACTURING, INC., Defendant.
DECISION AND ORDER GRANTING IN PART CONDITIONAL
CERTIFICATION AND NOTICE TO POTENTIAL FAIR LABOR STANDARDS
William C. Griesbach, Chief Judge United States District
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.
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
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.)
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.)
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
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.)
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).
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
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 ...