United States District Court, E.D. Wisconsin
LINDA KRUPP, individually and on behalf of all others similarly situated, Plaintiff,
IMPACT ACQUISITIONS LLC, IMPACT NETWORKING INDIANA, LLC, and IMPACT NETWORKING LLC Defendants,
GRANTING PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION
AND COURT-AUTHORIZED NOTICE (DKT. NO. 42); DENYING AS MOOT
DEFENDANTS' MOTION FOR PROTECTIVE ORDER (DKT. NO 63);
DENYING AS MOOT PLAINTIFF'S AMENDED MOTION FOR LEAVE TO
FILE A SUR-REPLY BRIEF (DKT. NO 69); AND SCHEDULING HEARING
ON DEFENDANTS' MOTION TO STRIKE, FOR PROTECTIVE ORDER,
AND FOR SANCTIONS (DKT. NO. 35)
PAMELA PEPPER United States District Judge.
plaintiff, Linda Krupp, brings this putative collective and
class action on behalf of herself and current and former
digital service technicians (DSTs) who were employed and
classified as salaried non-exempt by the defendants, but were
not compensated at one and one-half times their rate of pay
when they worked over 40 hours. She alleges that the
defendants failed to pay overtime wages, which violated the
Fair Labor Standards Act (FSLA), 29 U.S.C.
§§201-219, and its Wisconsin counterparts,
Wis.Stat. §§103.02 and 109.03, and Wis. Admin. Code
§DWD 274.03. Dkt. No. 1. The court has federal question
jurisdiction over the FLSA claims and supplemental
jurisdiction over the state law claims pursuant to 28 U.S.C.
§§1331 and 1367, respectively.
following motions are ready for resolution: (1) the
defendants' motion to strike, for protective order, and
for sanctions (Dkt. No. 35); (2) the plaintiff's motion
for conditional collective action certification (Dkt. No.
42); (2) the defendants' motion for a protective order
quashing or staying the deposition of Patrick Roth (Dkt. No.
63); and (3) the plaintiff's amended motion for leave to
file a sur-reply brief (Dkt. No. 69).
Motion for Conditional Class Certification and
Court-Authorized Notice (Dkt. No. 42)
to 29 U.S.C. §216(b), the plaintiff seeks conditional
certification of the collective overtime class of all persons
employed as salaried non-exempt DSTs by any defendant at any
time since March 22, 2013. She also requests (1) appointment
of her counsel as collective action counsel; (2) approval of
the proposed notice of right to join lawsuit; and (3) an order
directing the defendants to disclose identifying information
regarding any persons of whom they are aware who meet the
collective class definition.
defendants operate digital office equipment service and
repair businesses in Wisconsin, Indiana, and Illinois. Dkt.
Nos. 45-1 at 9, 18; 45-2 at 19. The defendants are separate
legal entities, but they share upper management (including a
chief executive officer who approves all salaries), they have
related ownership, and they operate under the same
“Impact Networking” brand. Dkt. No. 45-2, 8, 13,
16. Impact Acquisitions LLC's
(“Acquisitions”) vice president of operations,
who works primarily out of Impact Networking LLC's
(“Impact”) Illinois office and occasionally out
of Acquisitions' Brookfield office, processes the
defendants' entire payroll, including for DSTs. Dkt. No.
45-2, 6-7. Impact's Lake Forest, Illinois office handles
the defendants' human resources and sets the policies and
procedures that apply to all DSTs. Dkt. Nos. 45-1, 38,
230-31; 45-2, 17.
defendants have employed DSTs since June 2012, and the job
description is the same for all of them: to “[p]rovide
onsite customer service, field repair, and maintenance of
digital office equipment at [Impact's] customers'
facilities.” Dkt. Nos. 45-1, 28; 45-3, 1. Acquisitions
employs DSTs who work in Wisconsin. Impact LLC employs DSTs
who work in Illinois, and Impact Networking Indiana, LLC
(“Impact Indiana”) employs DSTs who work in
Indiana. Id. at 9-10.
plaintiff resides in Racine, Wisconsin, and Acquisitions
employed her from about June 2012 until June 2014. Dkt. No.
43. Wendell Walton, who has opted into this action, resides
in Marion County, Indiana, and worked as a DST for Impact
Indiana from about February 2014 through April 2014. At that
time, Impact Indiana terminated his employment because he had
not completed enough on-line training certifications. Dkt.
defendants have an Employee Handbook,  and all DSTs must
sign an acknowledgement that they have received a copy and
understand the policies they contain. Dkt. No. 41-1, 37.
Those policies set forth work requirements, and apply in the
same manner to all DSTs. Id. at 35-36. Pursuant to
the Handbook, the workweek starts on Monday and ends on
Friday, and each workday begins at 8 a.m. and ends at 5 p.m.
The workday includes an unpaid hour for lunch, which an
employee generally may schedule between 11 a.m. and 1 p.m.
Dkt. No. 45-9, Bates Nos. 000346-47.
Handbook also states that a manager can notify an employee
that overtime work may be required. Id. at Bates No.
000346. In order for an employee to receive overtime pay, the
employee's manager must authorize the overtime work in
advance. Id. at Bates No. 000344. The defendants do
not have a formal mechanism or procedure for DSTs to report
working overtime or through meal periods. Dkt. Nos. 45-1,
232; 45-2, 75.
DSTs are paid on a semi-monthly basis. Dkt. No. 45-2, 21.
With the exception of a few hourly DSTs employed by a company
acquired in 2015 who continue to be paid on an hourly basis,
DSTs have been classified as “salar[ied]”
“non-exempt” employees since 2012. Dkt. No. 45-1,
defendants categorize DSTs as “non-exempt” for
purposes of overtime compensation under the FLSA, and are
aware that DSTs are entitled to overtime compensation when
they work more than forty hours in a workweek. Dkt. Nos.
45-1, 116; 45-2, 23-24.
processing payroll, the defendants do not determine each
DST's actual start and/or end time each workday, the
actual start and/or end time of a meal period each workday,
or the actual number of hours and minutes that each DST
worked each workday or workweek within the payroll period.
Dkt. No. 45-2, 86. Instead, the defendants assume that the
DSTs work the regular work hours outlined in the Employee
Handbook - Monday through Friday from 8 a.m. to 5 p.m. minus
a one-hour lunch each workday, Dkt. No. 45-2, 68 - and their
salaries compensate them for a forty-hour workweek, Dkt. Nos.
45-1, 39, 120; 45-2, 31. Each DST's salary is divided
evenly between the twenty-four pay periods per year. Dkt. No.
45-2, 28. Overtime is added when a manager calls or otherwise
notifies payroll that the DST has worked overtime.
defendants' payroll software has the ability to track
start and end times for each DST each workday. Dkt. No. 45-2,
87-88. The defendants once attempted to use the software to
require DSTs to punch in and out at the start and end of
their respective shifts. Since 2012, they have not done so
for payroll purposes. Dkt. No. 45-2, 36-37, 73.
defendants use a merit review system to set goals and areas
of improvement for each DST. Dkt. No. 45-1, 41-42. DSTs are
awarded a number of points based on performance in four
categories: (1) training, (2) activity, (3) performance, and
(4) manager evaluation. Dkt. Nos. 45-1, 43; 45-10, Bates No.
000528. DSTs who fall below a certain percentage of points on
their review may be subject to termination. Dkt. Nos. 45-1,
47-50; 45-10, Bates No. ...