Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Malicki v. Leman U.S.A. Inc.

United States District Court, E.D. Wisconsin

February 20, 2019

JODIE L. MALICKI, on behalf of herself and all others similarly situated, Plaintiff,
v.
LEMAN U.S.A., INC., Defendant.

          DECISION AND ORDER ON PLAINTIFF'S MOTION FOR CONDITIONAL CLASS CERTIFICATION

          NANCY JOSEPH UNITED STATES MAGISTRATE JUDGE

         In this putative class and collective action, Jodie L. Malicki, a former hourly-paid, non-exempt Office and Warehouse employee at Leman U.S.A., Inc.'s Wisconsin location, alleges that Leman maintained several policies in violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”) and Wisconsin Wage Payment and Collection Laws, Wis.Stat. §§ 109.01 et seq., 103.01 et seq., 104.01 et seq., and Wis. Admin. Code § DWD 272.01. Specifically, Malicki alleges that she and other employees were frequently not completely relieved of duty from work during their regular meal times. She further alleges that Leman had a common policy of failing to compensate its employees by rounding, deducting, and/or failing to count recorded and compensable time, to the benefit of Leman. Malicki seeks to certify a conditional class of similarly situated hourly paid, non-exempt Office and Warehouse employees at all of Leman's United States locations within three years prior to the date of this lawsuit. Because Malicki has not made the modest factual showing necessary for conditional certification, I will deny the motion.

         BACKGROUND

         The Parties

         Leman is a Wisconsin corporation that provides transportation and logistical services throughout the United States. (Am. Compl. ¶ 2, Docket # 43.) Leman's home office is in Sturtevant, Wisconsin, but Leman operates multiple locations throughout the United States. (Id. ¶¶ 10-11.) The named plaintiff in this case is Jodie L. Malicki. Leman employed Malicki as an hourly-paid, non-exempt Office and Warehouse employee at Leman's Sturtevant location within the last three years from the date of the filing of the complaint. (Id. ¶ 16.)

         Alleged Policies

         Malicki challenges two specific Leman policies: (1) failing to pay employees for rest periods of short duration (i.e., twenty consecutive minutes or less) and (2) indiscriminately shaving time by impermissibly rounding, deducting, and/or failing to count recorded and compensable hours. Malicki avers that during her employment at Leman and on a daily basis, she worked alongside other hourly-paid, non-exempt Office and Warehouse employees as part of Leman's transportation and logistical services. (Declaration of Jodie L. Malicki (“Malicki Decl.”) ¶ 3, Docket # 25.) Malicki states that from the time she began her employment with Leman until April 11, 2016, she recorded the actual time she worked on timecards using Leman's manual punch-clock system. (Id. ¶ 4.) Malicki used this punch-clock system to “clock in” and “clock out” at the beginning and end of her shifts. (Id.)

         Immediately after “clocking in” each workday, Malicki performed compensable work. (Id. ¶ 5.) She avers that she personally observed other hourly-paid, non-exempt Office and Warehouse employees working immediately after “clocking in.” (Id.) Malicki states that immediately before “clocking out” each workday, she performed compensable work and personally observed other hourly-paid, non-exempt Office and Warehouse employees working immediately before “clocking out.” (Id. ¶ 6.) Malicki usually worked Monday through Friday from 8:00 a.m. to 4:30 p.m. (Id. ¶ 7.)

         Malicki states that she and other hourly-paid, non-exempt Office and Warehouse employees were required to “clock out” for lunch and “clock in” when they resumed work, regardless of whether they left the facility. (Id. ¶ 8.) Malicki states that she was often not completely relieved of duty or free from work for twenty consecutive minutes or more each work day for the purpose of eating lunch. (Id.) Malicki states that immediately before “clocking out” for lunch each workday she performed compensable work and immediately after “clocking in” following lunch each workday, she performed compensable work. (Id. ¶ 9.) Malicki avers that she personally observed other hourly-paid, non-exempt Office and Warehouse employees doing the same. (Id.) Malicki states that in the three years preceding the filing of her complaint, she and other Office and Warehouse employees frequently worked in excess of forty hours per workweek. (Id. ¶ 10.)

         Malicki further alleges that despite the fact that she and all other Office and Warehouse employees' timecards reflected the actual time worked each workday, Leman unlawfully failed to compensate its employees for all hours worked in excess of forty hours as a result of its policy of shaving time from Office and Warehouse employees' “clock in” and “clock out” time by rounding, deducting, and/or failing to count recorded and compensable time to Leman's benefit and to the employees' detriment. (Pl.'s Br. in Supp. of Cond. Class Cert. at 5, Docket # 24.) As one example, Malicki cites to the timecard of a fellow employee who “clocked in” at 7:28 a.m. and “clocked out” at 5:58 p.m. on March 31, 2016, and, after deducting a 30-minute unpaid meal break, Leman only compensated the employee for nine hours and fifteen minutes of work, despite working ten hours. (Declaration of David M. Potteiger (“Potteiger Decl.”) ¶ 6, Ex. 4, Figure 1, Docket # 26-4.)

         DISCUSSION

         1. Legal Standard for Conditional Certification

         The FLSA permits collective action “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 Fed.R.Civ.P. 23, where an unwilling plaintiff must “opt out” of the class, a class action pursuant to Section 216(b) of the FLSA requires employees or former employees to “opt in” to the class, by filing a written consent to join the action. Woods v. N.Y. Life Ins. Co., 686 F.2d 578, 579-80 (7th Cir. 1982) (explaining differences between collective action under the FLSA and class action certified pursuant to Rule 23). District courts may, in their discretion, facilitate notice to potential plaintiffs to a FLSA collective action, to implement this “opt in” procedure. See Hoffmann-LaRoche, 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., 232 F.R.D. 601, 605 (W.D. Wis. 2006).

         “Neither the FLSA, the Supreme Court, nor the Seventh Circuit has provided guidance on how the court is to determine whether the representative plaintiff is ‘similarly situated' to the potential plaintiffs. However, district courts in the Seventh Circuit have adopted a two-step approach.” Mares v. Caesars Entertainment, Inc., No. 06-CV-60, 2007 WL 118877, at *2 (S.D. Ind. Jan. 10, 2007); see also Bitner v. Wyndham Vacation Resorts, Inc., 301 F.R.D. 354, 357 (W.D. Wis. 2014) (“[M]ost courts, including this one, apply a two-step approach to certifying collective actions.”). The first step is conditional certification. Although conditional certification is not a “mere formality, ” a plaintiff need only make “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.” Bitner, 301 F.R.D. at 357 (internal quotations and citations omitted). ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.