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Morgan v. Northern Concrete Construction Inc.

United States District Court, E.D. Wisconsin

December 28, 2017

DWAYNE MORGAN, et al., Plaintiffs,


          William C. Griesbach, Chief Judge.

         Plaintiffs Dwayne Morgan, Clint Robinson, Paul Robinson, Michael Owens, Marques Stewart, Cornelius Buford, Shaun Saunders, Daunte Davis, and Kendall Holmes (the “Named Plaintiffs”) filed this action on behalf of themselves and others similarly situated against CSW, Inc. and Defendant Northern Concrete Construction, Inc. (“Northern Concrete”). The amended complaint alleges that joint employers CSW and Northern Concrete failed to pay the plaintiffs minimum wage and overtime pay, as required under the Fair Labor Standards Act (“FLSA”), and straight time and overtime pay, as required under Wisconsin Wage and Hour law. ECF No. 25. This court previously entered an order approving a settlement between the Named Plaintiffs and CSW, and granting the Named Plaintiffs’ motion to withdraw all claims against CSW. ECF No. 102. Although the court dismissed CSW from the case at that time, the court has since granted a motion to consolidate the Named Plaintiffs’ case with a related action that CSW brought against Northern Concrete. ECF No. 113.

         This matter comes before the court on the Named Plaintiffs’ motion for conditional certification of a collective action for their FLSA claims against Northern Concrete. ECF No. 67. Specifically, they seek the certification of two classes: (1) all employees who traveled to Wisconsin to work on Northern Concrete jobsites after being referred to Northern Concrete by CSW; and (2) all Northern Concrete direct-hire employees who received a per diem that exceeded their reasonably estimated meal expenses. The Named Plaintiffs have submitted proposed forms for court facilitated notice, and they seek an order requiring Northern Concrete to produce a list of all members of the proposed classes within ten days of this court’s order. Also before the court is the Named Plaintiffs’ expedited motion under Civil Local Rule 7(h) seeking leave to file a second amended complaint. ECF No. 116. For the reasons set forth below, the Named Plaintiffs’ motion for leave to amend their complaint will be denied, and their motion for conditional certification and court facilitated notice will be granted in part and denied in part.


         Northern Concrete is a concrete contractor located in Wisconsin. CSW is a Mississippi corporation that supplied concrete finishers and laborers to larger contractors throughout the country. ECF No. 62-3 at 1–2. During 2015 and 2016, Northern Concrete contracted with CSW to engage the services of approximately 50 to 60 temporary concrete workers on various projects throughout Wisconsin. ECF No. 77 ¶ 2; ECF No. 62-3 at 3, 6. With the exception of Marques Stewart (one of the Named Plaintiffs) the workers that CSW assigned to Northern Concrete lived in Mississippi or Tennessee, and the vast majority lived in Mississippi. ECF No. 69 ¶ 2. As a result, these out-of-state workers traveled from their home states to Wisconsin to work on the Northern Concrete projects. Id. ¶¶ 3–6. The workers generally traveled to Wisconsin on the day before beginning work, although some chose to spread the drive across the two days before beginning work. Id. ¶¶ 3–4.

         While staying in Wisconsin, the workers referred to Northern Concrete by CSW stayed in hotels paid for by CSW, Northern Concrete, or at their own expense, depending on the night of the week and the worker’s assigned schedule. ECF No. 77 ¶ 5; ECF No. 69 ¶¶ 3–4; ECF No. 62-3 at 4–5. As part of the oral agreements between Northern Concrete and CSW regarding worker placement and compensation, Northern Concrete agreed to a pay a $35 per diem to each worker sent by CSW. ECF No. 77 ¶ 6. Northern Concrete’s director of human resources has also submitted a declaration explaining that Northern Concrete similarly “pays $35 per diem for its direct hire employees when [they] . . . travel[] a sufficient distance for work requiring an overnight hotel stay, which typically is at least a 90-minute drive.” Id. ¶ 7. The declaration states that this $35 per diem “is intended to cover meals and mileage.” Id. (emphasis added). The Named Plaintiffs, however, point to an inconsistency between this declaration and Northern Concrete’s earlier responses to two of the Named Plaintiffs’ interrogatories, which characterize the per diem as reimbursing direct-hire employees for meals but make no mention of mileage. ECF No. 70-3 at 2–3.


         I. Motion for Conditional Certification

         The Named Plaintiffs’ motion for conditional certification identifies two classes for which it argues that conditional certification-and the accompanying court-approved notice-is appropriate. First, the Named Plaintiff seek certification of a class consisting of all workers referred to Northern Concrete by CSW who traveled away from their home communities to work for Northern Concrete. Second, they seek conditional certification of a class consisting of all of Northern Concrete’s direct-hire employees who received a per diem from Northern Concrete.

         A. Conditional Certification Standard

         The FLSA permits collective actions “against any employer . . . 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). Unlike a typical class action suit under Federal Rule of Civil Procedure 23, in which unwilling plaintiffs must “opt out” of the class, a collective action under Section 216(b) of the FLSA requires employees or former employees to “opt in” to the class by providing written consent to join the collective action. Woods v. N.Y. Life Ins. Co., 686 F.2d 578, 579–80 (7th Cir. 1982) (discussing differences between Rule 23 class action and FLSA collective action). To implement the opt-in procedure in an FLSA collective action, district courts may, in their discretion, facilitate notice to potential plaintiffs. 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’y, 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.” Ehmann v. Pierce Mfg., Inc., No. 16-CV-247, 2016 WL 5957275, at *2 (E.D. Wis. Oct. 13, 2016) (citing Adair v. Wis. Bell, Inc., No. 08-CV-280, 2008 WL 4224360, at *8 (E.D. Wis. Sept. 11, 2008)).

         In the first stage, the court examines whether the plaintiff has demonstrated a “reasonable basis” for believing he is similarly situated to potential class members. Miller v. ThedaCare Inc., No. 15-CV-506, 2016 WL 4532124, at *3 (E.D. Wis. Aug. 29, 2016). The plaintiff must make “at least a modest factual showing” that collective action is appropriate. Adair, 2008 WL 4224360, at *4. To establish that factual support, the plaintiff may present affidavits, declarations, deposition testimony, or other documents that “demonstrate some ‘factual nexus between the plaintiff and the proposed class or a common policy that affects all the collective members.’” Ehmann, 2016 WL 5957275, at *2 (quoting Nehmelman v. Penn Nat’l Gaming, Inc., 822 F.Supp.2d 745, 750 (N.D. Ill. 2011)). Although the “modest factual showing” standard is lenient, 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 avoid wasting the parties’ time and resources in cases that do not warrant certification. 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 the second step, which usually arises on the defendant’s motion for decertification, the court must determine whether the plaintiffs who have opted in are, in fact, similarly situated. Miller, 2016 WL 4532124, at *4 (citing Brabazon v. Aurora Health Care, Inc., No. 10-CV-714, 2011 WL 1131097, at *2 (E.D. Wis. Mar. 28, 2011)). In this phase, the court assesses whether continuing as a collective action provides ...

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