United States District Court, E.D. Wisconsin
DECISION AND ORDER
William C. Griesbach, Chief Judge United States District
Joshua Laughlin and Greg Scotto, Jr., (the “Named
Plaintiffs”) brought this wage-and-hour collective and
putative class action against their former employer,
Defendant Jim Fischer, Inc., on their own behalf and on
behalf of other similarly situated hourly jobsite employees.
They allege that Defendant violated the jobsite
employees' rights to regular and overtime pay under the
Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et
seq., and Wisconsin's wage law, Wis.Stat. §
109.01, et seq. Specifically, they allege that
Defendant failed to treat their travel time to and from
jobsites as hours worked for which they were owed
compensation, failed to account for 401(k) contributions on
prevailing wage jobs when determining the regular rate of pay
for overtime purposes, erroneously payed daily overtime
instead of weekly overtime on prevailing wage jobs, and
incorrectly payed weekly overtime at the end of the workweek
based on the final job worked rather than the average weekly
regular rate. The court has jurisdiction over the FLSA claims
pursuant to 28 U.S.C. § 1331 and over the state law
claims pursuant to 28 U.S.C. § 1367.
the court granted the Named Plaintiffs' motion for
conditional certification of a collective FLSA class under 29
U.S.C. § 216(b). ECF No. 39. This matter comes before
the court on the Named Plaintiffs' motion for
certification of their state law claims under Federal Rule of
Civil Procedure 23 (ECF No. 50) and Defendant's motion to
decertify the conditional FLSA collective class (ECF No. 66).
For the reasons stated below, the Named Plaintiffs'
motion to certify a Rule 23 class will be granted, and
Defendant's motion to decertify the conditional FLSA
collective class will be denied.
is a concrete contractor that does business throughout
northeastern Wisconsin. ECF No. 30 ¶¶ 2-3. The
Named Plaintiffs are hourly jobsite employees formerly
employed by Defendant, and they bring both their FLSA and
Wisconsin law claims on behalf of similarly situated hourly
jobsite employees. This court's earlier order
conditionally certifying a collective action on the FLSA
claims permitted the mailing of notice to a class consisting
of “[a]ll persons who are or were employed by Jim
Fischer, Inc. as hourly jobsite employees during the time
period on or after October 6, 2013.” ECF No. 39 at 15.
The court concluded that the Named Plaintiffs made an
adequate initial showing that they were similarly situated to
the conditional class members with regard to claims for
travel time pay, overtime computation on prevailing wage jobs
for which they received 401(k) contributions, and
Defendant's daily overtime policies. Id. at 4.
Eight individuals have filed a notice of consent to opt in as
plaintiffs in the FLSA action, bringing the size of the
conditional class to ten members, including both Named
Plaintiffs. ECF Nos. 40-47. As will be discussed below,
however, Defendant disputes this number as part of its motion
for decertification of the conditional FLSA class. ECF No. 67
addition to opposing Defendant's motion to decertify the
FLSA conditional class, the Named Plaintiffs have filed a
motion to certify a Rule 23 class consisting of similar
jobsite employees. The Named Plaintiffs define the proposed
Rule 23 class as follows: “All hourly employees of Jim
Fischer Inc., who performed work for Jim Fischer Inc. on a
jobsite on or after October 6, 2014, excluding owners.”
ECF No. 50. The Named Plaintiffs assert that the class
consists of at least 40 hourly jobsite employees employed by
Defendant between October 6, 2014, and the end of 2016.
Pl.'s Br., ECF No. 51 at 9-11.
Motion to Certify State Law Claims
class action is “an exception to the usual rule that
litigation is conducted by and on behalf of the individual
named parties only.” Califano v. Yamasaki, 442
U.S. 682, 700-01 (1979). To obtain certification, the
“proposed class must satisfy the requirements of Rule
23(a), as well as one of the three alternatives in Rule
23(b).” Messner v. Northshore Univ.
HealthSystems, 669 F.3d 802, 811 (7th Cir. 2012) (citing
Siegel v. Shell Oil Co., 612 F.3d 932, 935 (7th Cir.
2010)). Rule 23(a) serves as a gatekeeper to ensure that a
class format is an appropriate procedure for adjudicating a
particular claim. Bell v. PNC Bank Nat'l
Ass'n, 800 F.3d 360, 373 (7th Cir. 2015).
Accordingly, Rule 23(a) imposes four requirements:
numerosity, commonality, typicality, and adequacy of
representation. Fed.R.Civ.P. 23(a). As noted, a proposed
class must meet one of the requirements of Rule 23(b) in
addition to the four requirements in Rule 23(a). The Named
Plaintiffs seek certification under Rule 23(b)(3). That rule
allows for certification of classes seeking monetary damages
when “questions of law or fact common to the class
members predominate over any questions affecting individual
members” and when the “class action is superior
to other available methods for fairly and efficiently
adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3).
conducting the Rule 23 analysis, the court should not turn
the class certification proceedings into a dress rehearsal
for trial on the merits of the case. See, e.g.,
Schleicher v. Wendt, 618 F.3d 679, 685 (7th Cir.
2010). Nevertheless, “a court may not simply assume the
truth of the matters as asserted by the plaintiff.”
Messner, 669 F.3d at 811. Rather, “[a] party
seeking class certification must affirmatively demonstrate
his compliance with the Rule-that is, he must be prepared to
prove that there are in fact sufficiently numerous parties,
common questions of law or fact, etc.” Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).
“If there are material factual disputes, the court must
‘receive evidence . . . and resolve the disputes before
deciding whether to certify the class.'”
Messner, 669 F.3d at 811 (citing Szabo v.
Bridgeport Machines, Inc., 249 F.3d 672, 676 (7th Cir.
2001)). The Named Plaintiffs bear the burden of showing that
a proposed class meets the Rule 23 requirements by a
preponderance of the evidence. Id.
the Named Plaintiffs' brief in support of their
certification motion addresses all four Rule 23(a)
requirements as well as the Rule 23(b)(3) requirements,
Defendant's brief develops only two arguments in
opposition to certification. First, Defendant contends that
the Named Plaintiffs fail to establish commonality, as
required by Rule 23(a). Second, Defendant argues that a class
action is not the superior mechanism for resolving the Named
Plaintiffs' state law claims, as required by Rule
23(b)(3). The court will address Defendant's arguments at
each of the relevant steps in the analysis.
first the numerosity requirement, under Rule 23(a)(1) the
plaintiff must show that “the class is so numerous that
joinder of all members is impractical.” The Seventh
Circuit has recognized that a class consisting of as few as
forty members could satisfy the numerosity requirement.
Pruitt v. City of Chicago, 472 F.3d 925, 926-27 (7th
Cir. 2006). The Named Plaintiffs assert that the challenged
travel time and overtime policies applied to all of
Defendant's hourly employees, and they identify exactly
40 different non-owner employees who worked on projects and
received hourly wages from Defendant between October 2014 and
the end of 2016. Pl.'s Br., ECF No. 51 at 2-3 (citing ECF
Nos. 52-1, 52-2, 52-3, 52-4). Because Defendant does not
oppose certification on numerosity grounds, the court
concludes that the class of at least 40 members identified by
the Named Plaintiffs satisfies Rule 23(a)(1)'s numerosity