United States District Court, W.D. Wisconsin
ERIC HOLMES, on behalf of himself and all others similarly situated, Plaintiff,
SID'S SEALANTS, LLC, SID ARTHUR and NORTH SHORE RESTORATION, LLC, Defendants.
OPINION AND ORDER
WILLIAM M. CONLEY District Judge
putative collective action, plaintiff Eric Holmes claims that
defendants Sid's Sealants, LLC, and North Shore
Restoration, LLC, denied their employees overtime
compensation in violation of the Fair Labor Standards Act, 29
U.S.C. § 201 et seq. (“FLSA”).
Plaintiff now asks the court to conditionally certify a
collective action consisting of defendants' current and
former employees impacted by their allegedly unlawful
policies. (Dkt. #29.) Because plaintiff has made the required
modest factual showing necessary for conditional
certification, the court will grant the motion and authorize
distribution of the attached notice.
Sid's is a Wisconsin limited liability corporation that
provides building weatherization for general contractors.
Sid's employs approximately 30 union members, whose job
titles range from apprentice to journeyman. Defendant North
Shore is also a Wisconsin limited liability corporation that
inserts floor joints and provides other entry-level work for
a limited number of general contractors. North Shore employs
approximately 10 non-union employees. These two defendant
companies are distinct legal entities; perform different
work, and have unique employer and corporate identification
numbers, as well as separate unemployment compensation
accounts, credit cards and bank accounts. The companies do,
however, acknowledge that: defendant Sidney Arthur is the
companies' registered agent and the sole member of both
LLCs; the companies have sometimes been hired to work on the
same projects; and their bank accounts are linked, in part to
appears to be some disagreement as to which of the defendant
companies employed plaintiff Eric Holmes (and for how long).
(Compare Declaration of Eric Holmes (dkt. #32)
¶ 3 with Defs.' Conditional Certification
Opp'n (dkt. #36) 8.) The court, however, need not resolve
this dispute at this time because plaintiff purports to bring
suit on behalf of those similarly situated employees of both
mostly on Holmes' own observations and statements
attributed to Arthur, plaintiff alleges that the defendant
companies shared two policies that violated the FLSA.
First, both companies failed to pay overtime for
hours worked over 40 hours per week. Plaintiff Holmes alleges
that he -- and other members of his crew -- routinely worked
more than 40 hours per week, yet all their time was
compensated at their regular hourly rate. To avoid paying
overtime, plaintiff also alleges that both companies issued
two paychecks per pay period for employees who worked more
than 40 hours per week. Plaintiff further alleges that Arthur
told him of his policy not to pay overtime. As further
evidence of this alleged policy, plaintiff notes that
Sid's paid only 69.5 total hours of overtime between
2013-2017 (all in 2014 and 2015) and North Shore paid
zero hours of overtime during that same time frame.
plaintiff alleges that both companies required employees to
punch out at the start of travel. While acknowledging that
this policy may not be per se unlawful, plaintiff alleges
that the policy was unlawful as applied by defendants because
the companies did not compensate workers' for: (1) return
trips from outside their home communities during normal
working hours, (2) trips between worksites, and (3) trips
between worksites and work at the shop, which also deprived
them of the ability to earn overtime. For this claim,
plaintiff again relies primarily on his observations and
experience, including calls that defendant Arthur would make
personally to crewmen who failed to punch out before
departing a jobsite, even if returning to the shop to
deny the existence of these policies, and defendant Arthur
specifically denies making the statements attributed to him.
the FLSA, plaintiffs can bring a “collective
action” seeking to recover unpaid compensation against
an employer on behalf of themselves and “similarly
situated” employees. 29 U.S.C. § 216(b). Before a
plaintiff can litigate on behalf of any other employee,
however, they must “consent in writing” and that
consent must be filed with the court. Id. Because of
this “opt in” requirement, courts engage in a
two-step process to certify FLSA collective actions.
Bitner v. Wyndham Vacation Resorts, Inc., 304 F.R.D.
354, 357 (W.D. Wis. 2014). In the first, the plaintiff seeks
a conditional certification, after which notice is sent to
putative plaintiffs and discovery proceeds, in the second,
the defendants may move to decertify. Id. at 357-58.
conditional certification stage, the plaintiff need only
provide “a modest factual showing sufficient to
demonstrate that they and potential plaintiffs together were
victims of a common policy or plan that violated the
law.” Id. at 357 (quoting Austin v. CUNA
Mut. Ins. Soc'y, 232 F.R.D. 601, 605 (W.D. Wis.
2006)). Unlike the “rigorous analysis” required
under Rule 23 of the Federal Rules, the conditional
certification standard is “‘fairly lenient,
'” although not “a ‘mere
formality.'” Id. (quoting
Fosbinder-Bittorf v. SSM Health Care of Wis., Inc.,
No. 11-cv-592-wmc, 2013 WL 3287634, at *4 (W.D. Wis. Mar. 21,
2013) and Berndt v. Cleary Bldg. Corp., No.
11-cv-791-wmc, 2013 WL 3287599, at *7 (W.D. Wis. Jan. 25,
the court does not adjudicate the merits at
conditional certification and factual disputes are resolved
in favor of the plaintiff. Id. at 357-58. Showing
that the named plaintiff and the putative plaintiffs are
“victims of a common policy or plan that [is asserted
to have] violated the law” satisfies the similarly
situated requirement at conditional certification.
Id. at 358 (alteration in the original) (quoting
Freeman v. Total Sec. Mgmt.-Wis., LLC, No.
12-cv-461-wmc, 2013 WL 4049542, at *5 (Aug. 9, 2013 W.D. Wis.
2013)). In turn, this “requires a ‘factual nexus
that connects [the named plaintiff] to other potential
plaintiffs as victims of an unlawful practice.'”
Id. (alteration in the original) (quoting
Sjoblom v. Charter Commc'ns, LLC, 571 F.Supp.2d
961, 971 (W.D. Wis. 2008)). This inquiry centers on
“whether potential plaintiffs ‘are sufficiently
similar to believe a collective action will facilitate
efficient resolution of a legal dispute involving claims
which share common questions and common answers.”
Id. (quoting Berndt, 2013 WL 3287599, at
plaintiff asks the court to certify conditionally “a
single class of all persons who worked as a jobsite employee
. . . for either Sid's Sealants or North Shore
Restoration during the time period on or after December 12,
2013.” (Pl.'s Mot. Conditional Certification (dkt.
#29) 1.) While defendants raise a number of objections to
conditional certification in their opposition (dkt. #36), the
court finds none particularly persuasive.
defendants' objections boil down to an assertion either
that (1) plaintiff has not offered additional employee
declarations or (2) plaintiff's facts are wrong, and thus
he has not met his burden. As outlined above, however,
plaintiff was not required to present additional declarations
at the conditional certification stage, and factual disputes
are resolved in plaintiff's favor. Citing almost no
authority, defendants nevertheless assert that plaintiff
should be held to an “intermediate” standard of
scrutiny, because he had access to other employees (through
his prior professional relationships or by virtue of already
being provided contact information by defendants). However,