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Bessy v. Per Mar Security and Research Corp.

United States District Court, W.D. Wisconsin

March 30, 2018

ANTONE BESSY and KANASHA WOODS, on behalf of themselves and all others similarly situated, Plaintiffs,



         Plaintiffs 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.)[1] 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.


         Plaintiffs 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.

         Plaintiffs 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) 2.)

         Second, 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.


         I. Conditional Certification

         Under 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.

         At the 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, 2013)).

         Importantly, 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 *7).

         Despite 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.

         II. National Collective Action Regarding Calculation of Overtime Rate of Pay

         One 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 ...

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