United States District Court, E.D. Wisconsin
STADTMUELLER, U.S. DISTRICT JUDGE
filed this action on October 3, 2018, alleging violations of
the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§ 201 et seq., and Wisconsin's Wage Payment
and Collection Laws, Wis.Stat. § 109.01 et
seq., Wis.Stat. § 104.01 et seq.,
Wis.Stat. § 103.001 et seq., Wis. Admin. Code
§ DWD 274.01 et seq., and Wis. Admin. Code
§ DWD 272.001 et seq. Plaintiffs seek to bring
their FLSA claim on a class basis, which in the parlance of
the FLSA is called a collective action. See 29
U.S.C. § 216(b). On February 23, 2019, they filed a
motion for conditional certification of their FLSA claim as a
collective action. (Docket #25). Defendants oppose
conditional certification. (Docket #32). The motion is now
fully briefed and, for the reasons explained below,
conditional certification will be granted.
Senior Lifestyle Corporation (“SLC”) operates
numerous assisted living centers across the country.
Plaintiffs worked at one such facility in Greenfield, known
as “Hickory Park.” Plaintiffs contend that SLC
failed to pay its employees, including Plaintiffs, at the
proper rate when those employees worked overtime.
Specifically, the FLSA requires employers to calculate
overtime pay based on the employee's regular rate of pay.
Plaintiffs maintain that SLC and its co-defendant, SL
Greenfield LLC, paid certain non-discretionary bonuses to
their employees at Hickory Park, but when it came time to pay
those employees for overtime, the bonuses were not included
in the employees' regular rate. Thus, the employees were
shortchanged for their overtime.
assert that this improper overtime policy is uniform across
SLC's national operations. For support, Plaintiffs offer
their own testimony about the practices at Hickory Park. They
also offer the testimony of Mary Tasche, who worked at
SLC's Sheboygan facility as the director of sales and
marketing. According to Plaintiffs and Tasche, the bonuses
for which they were not properly compensated included Tour
Bonuses (or Marketing Bonuses), Move-In Bonuses, Resident
Referral Bonuses, Shift Bonuses, Quarterly Net Gain Bonuses,
and Quarterly Occupancy Bonuses.
further support, Plaintiffs point to the testimony of Noel
Pakulski (“Pakulski”), the executive director of
Hickory Park, and Dave Richey (“Richey”),
SLC's vice president of operations. According to
Plaintiffs, Pakulski's testimony confirms that they were
not properly paid with respect to the bonuses they earned at
Hickory Park. As to SLC's national operations, Richey
testified that the corporation's approach is to not pay
overtime based on the employee's regular wages plus
If it's a bonus, it's a bonus. It's not part of
the regular pay. . . . You've got a regular rate of pay
that's -- your rate of pay is $11 an hour, that's
your rate of pay. You work overtime, time and a half, you get
time and a half on that. You do something outside of, you
know, what your normal process is or you do something
different, then there would be a bonus for that.
. . .
So your question, if I remember it, was should bonuses be
part of regular pay and I don't - it's a bonus.
It's not part of regular pay. So that's my statement.
. . . If there's a bonus, it's a bonus. It's
outside of normal pay.
(Docket #29-3 at 81-82, 85). Finally, Plaintiffs note that
SLC maintains a “FLSA Overtime and Payroll Practices
Policy” which is silent on the matter of properly
computing bonuses into overtime pay. (Docket #29-2 at
counter that each assisted living facility operates with
relative independence. As Defendants describe it, the
facilities are like franchises; each executive director runs
their own facility as they see fit, and pays SLC for various
support services, including human resources, marketing, and
sales. Important to this case is the executive directors'
freedom to set pay for their employees and determine bonuses.
SLC offers various “standards” for certain
bonuses, but these are mere suggestions for how a particular
bonus should be structured. See Id. at 123-28. SLC
does not dictate what bonuses must be offered or how bonuses
should be paid. Indeed, when told about the Tour Bonus policy
at Hickory Park, Richey said that he was not aware that it
was being offered. Plaintiffs rejoin that in her deposition,
Pakulski indicated that bonuses over a certain dollar
threshold would need approval from SLC.