United States District Court, W.D. Wisconsin
GABRIEL DE LEON, RAMON PENA, and JOSE LUIS RAMIREZ, Plaintiffs,
GRADE A CONSTRUCTION INC., Defendant.
OPINION & ORDER
D. PETERSON District Judge.
Gabriel De Leon, Ramon Pena, and Jose Luis Ramirez allege
that their former employer, defendant Grade A Construction
Inc., failed to pay overtime, in violation of the Fair Labor
Standards Act (FLSA) and Wisconsin law, and failed to pay the
prevailing wage, in violation of Wisconsin law. Plaintiffs
seek to represent two FLSA collective classes and two Rule 23
classes under Wisconsin wage and hour laws.
plaintiffs move for conditional certification of their FLSA
classes. Dkt. 30. Because plaintiffs have made the modest
showing required to grant conditional certification and
authorize notice to the classes, the court will grant the
determining whether plaintiffs have demonstrated that they
are entitled to conditional class certification, the court
considers the complaint and the affidavits the parties have
submitted. Bitner v. Wyndham Vacation Resorts, Inc.,
301 F.R.D. 354, 357 (W.D. Wis. 2014). “Plaintiffs'
materials are the proper focus at this preliminary stage, not
defendants'. For the purposes of conditional
certification, therefore, the court resolves any factual
disputes in plaintiffs' favor.” Id. at 358
directly employs workers (“official” employees)
and staffs jobsites with workers from a staffing agency, EC
Property Services, Inc. Grade A pays its official employees
an hourly wage plus one paid half hour for lunch. The
lunchbreak does not count towards the 40-hour-per-week
overtime requirement. Thus, a standard work week for an
official employee, including the paid lunch, is 42.5 hours.
Employees, with Grade A's approval, may
“bank” hours worked in excess of 42.5, to be paid
out in future weeks when the employee does not work 42.5
hours. Grade A pays the EC Property Services workers on a
“piece-rate” basis. A piece-rate compensation
scale pays workers according to the number of measurable
units or pieces they complete-not the number of hours they
hired Ramirez as an official employee and, at certain points,
banked his overtime hours. Plaintiffs have produced three
other employees' timesheets that show that the employees
worked more than 42.5 hours in certain weeks, yet Grade A
paid the employees for 42.5 hours. This purportedly shows
that other employees were banking their overtime hours, too.
hired De Leon and Pena through EC Property Services to work
on Grade A jobsites. The EC Property Services workers often
worked at least 57 hours per week during some projects;
however, Grade A paid EC Property Services (who, in turn,
paid its employees) at the piece-rate level-even after the
employees worked more than 42.5 hours.
allege that Grade A implemented company-wide policies and
practices that resulted in lost overtime pay for both
official and EC Property Services workers, in violation of
the FLSA. For his part, Ramirez alleges that Grade A's
banked hours policy violates the FLSA. Ramirez seeks to
represent all employees that had their hours banked and lost
and Pena seek to represent EC Property Services workers that
did not receive overtime pay for their work on Grade A
jobsites due to the piece-rate policy.
move for conditional certification of two FLSA collective
classes, pursuant to 29 U.S.C. § 216(b). Dkt. 30.
allege violations of the FLSA's overtime provisions. Such
“[a]n action . . . may be maintained . . . by any one
or more employees for and in behalf of himself or themselves
and other employees similarly situated.” 29 U.S.C.
§ 216(b). FLSA collective actions are different than
Rule 23 class actions: potential FLSA plaintiffs receive
notice and an opportunity to opt in to the class
rather than notice and an opportunity to opt out.
Id.; Alvarez v. City of Chicago, 605 F.3d
445, 448 (7th Cir. 2010). “The conditional approval
process is a mechanism used by district courts to establish
whether potential plaintiffs in the FLSA collective action
should be ...