United States District Court, W.D. Wisconsin
ANTONE BESSY and KANASHA WOODS, on behalf of themselves and all others similarly situated, Plaintiffs,
PER MAR SECURITY AND RESEARCH CORP, Defendant.
OPINION AND ORDER
WILLIAM M. CONLEY DISTRICT JUDGE.
Antone Bessy and Kanasha Woods allege that their former
employer Per Mar Security and Research Corp violated the Fair
Labor Standards Act, 29 U.S.C. § 201 et seq.
(“FLSA”) and Wisconsin wage and hour statutes by
failing to properly pay for overtime work. Plaintiffs seek to
pursue a collective action under the FLSA and a Rule 23 class
action for their state law claims. Before the court is
plaintiffs' motion for conditional certification of the
FLSA collective action. (Dkt. #27.) For the reasons that follow,
the court will grant plaintiffs' motion for conditional
certification of the following two FLSA collection actions:
(1) a class of all Per Mar employees pursing a claim based on
defendant's method for calculating the rate of pay during
overtime hours; and (2) a class of Wisconsin employees only
pursuing a claim based on Per Mar's alleged
under-reporting of hours worked.
are both former Special Events employees for Per Mar Security
and Research Corp's Milwaukee branch. Per Mar provides
security services to business and residential customers,
including security systems and securities guards, located
throughout the Midwest, with twenty-three branch locations in
thirteen states. It has five branch offices in Wisconsin that
provide security guard services: Eau Claire, Green Bay,
Madison, Milwaukee and Wausau. Per Mar provides two types of
security services, permanent uniformed security guards and
special event officers. Plaintiffs were both special event
officers. Employees who perform services at special events
are required to record their hours worked on a paper sign-in
sheet. (This is in contrast to employees who perform work for
permanent clients who record their hours electronically.)
Defendant contends, however, that each branch uses paper
timesheets for special events, but the form of those
timesheets vary from branch to branch.
pursue two FLSA claims. First, plaintiffs claim that
defendant improperly calculates their overtime compensation
by using the rate based on the work being performed at the
time of the overtime, rather than a blended rate (or the
average straight time wage rate) for the entire work week.
For this claim, plaintiff collected examples of underpayment
of overtime wages because of this alleged improper method of
calculating overtime compensation from each of Per Mar's
five Wisconsin branches. Plaintiff, however, seeks to certify
a collective action conditionally that covers all of Per
Mar's branches, in part because “Per Mar has failed
to abide by the parties' agreement to produce time cards
for all of its branches.” (Pls.' Mot. (dkt. #28)
plaintiffs allege that defendant violated the FLSA by
adopting an unwritten policy of having supervisors undercount
or under-report employees' hours, thus depriving them of
overtime pay. For this collective action, plaintiffs seek to
cover only Per Mar's employees at its Wisconsin branches,
having collected evidence from at least six employees,
including plaintiff Bessy, of supervisors completing
employees' time cards in three of Per Mar's branches.
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 step, 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
this relatively low bar, defendant lobs a number of
challenges with respect to both of the proposed collective
actions. The court will address each in turn.
National Collective Action Regarding Calculation of Overtime
Rate of Pay
primary challenge to plaintiffs' motion to certify a
nationwide collective action is that their evidence of the
method of calculating overtime is limited to Wisconsin
employees. Specifically, defendant argues that plaintiff
limits its proposed classes to Wisconsin employees and that,
in response to plaintiffs' motion to compel, defendant
was only required to produce payroll records from each of its
five Wisconsin locations. As for defendant's first
argument, the cited portions of the complaint concern
plaintiffs' proposed Rule 23 class actions, premised on
violations of Wisconsin state law, and, therefore,
necessarily limited to Wisconsin employees. The ...