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Anderson v. Weinert Enterprises, Inc.

United States District Court, E.D. Wisconsin

August 23, 2019

RICHARD J. ANDERSON, on behalf of himself and all others similarly situated, Plaintiff,
v.
WEINERT ENTERPRISES, INC., Defendant.

          DECISION AND ORDER

          William C. Griesbach, Chief United States District Judge.

         Plaintiff Richard Anderson brought this wage-and-hour collective and putative class action on behalf of himself and similarly situated current and former hourly employees of the defendant, Weinert Enterprises, Inc. Anderson alleges in his first amended complaint that Weinert violated 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, Anderson alleges Weinert violated the FLSA by paying straight time rates for travel time between the shop and the job site and for failing to count such travel time when calculating an employee's eligibility for weekly overtime pay, as well as failing to account for cash bonuses and cash fringe benefits when calculating employees' base rates of pay to determine overtime pay. Anderson alleges Weinert violated Wisconsin law by paying travel time at straight time rates even when the travel occurred after 40 hours, failing to count paid travel hours when computing overtime pay for non-traveling work, failing to count paid daily overtime hours toward the weekly overtime threshold of 40 hours, improperly computing overtime based on the type of work performed during overtime hours rather than based on the regular rate, and failing to account for bonuses and cash fringe benefits when calculating an employee's 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 previously approved the parties' stipulation for conditional certification of an FLSA collective action. Dkt. No. 17. On April 30, 2019, the deadline for Anderson to file a motion for class certification and Weinert to file a motion to decertify the FLSA collective action, Anderson filed a motion for Rule 23 class certification of the state law claims and Weinert filed a motion to strike the untimely opt-in consents of two individuals as well as a motion to decertify the FLSA collective action. Rather than file a response in opposition to Weinert's motions, Anderson submitted a motion for leave to file a second amended complaint that seeks, among other things, to abandon the collective action and add the three individuals who submitted consents as additional named plaintiffs. For the reasons that follow, Anderson's motion for class certification will be denied, his motion for leave to amend the complaint will be granted, and Weinert's motions will be denied as moot.

         BACKGROUND

         Weinert is an industrial and commercial roofing contractor operating in northeastern Wisconsin that contracts with public and private entities for repair, maintenance, and installation of roofing systems. Some of the public projects Weinert worked on were subject to prevailing wage and benefits rates that are determined by the State of Wisconsin. After January 1, 2017, Weinert did not take on any new prevailing wage projects, and employees hired in 2018 never worked on those types of projects. The roofing work Weinert performs is seasonal and work typically begins in March of each year.

         Weinert employees are not required to report to the company's shop before reporting to the job site. If employees drive directly from their homes to a job site, they are not paid for that travel time. But employees do have the option to carpool from the company's shop to a job site by riding in a company vehicle, and if an employee carpools in a company vehicle, Weinert pays the employee for the time spent traveling. Time spent on work performed at the shop prior to arriving at the job site would be added to the job site time. All travel time was paid at a rate equal to 1½ times the minimum wage rate of $7.25. Weinert does not pay overtime to an employee until the employee has worked more than 40 hours of non-travel time during the week.

         ANALYSIS

         A. Motion to Certify State Law Claims Under Rule 23

         Anderson seeks to certify a class consisting of “[a]ll hourly employees who worked on the jobsite for the Defendant on or after June 14, 2016.” Dkt. No. 23 at 1. However, Anderson does not seek to certify the class as to all of his state law claims. Instead, class certification would be limited to the following two claims: (1) that Weinert failed to count paid travel hours when computing overtime pay for non-traveling work; and (2) that Weinert improperly computed overtime based on the type of work performed during overtime hours rather than based on the regular, or a blended, rate.

         “Because a class action is an exception to the usual rule that only a named party before the court can have her claims adjudicated, the class representative must be part of the class and possess the same interest and suffer the same injury.” Bell v. PNC Bank, Nat'l Ass'n, 800 F.3d 360, 373 (7th Cir. 2015) (citing Wal-Mart Stores v. Dukes, 564 U.S. 338, 348 (2011); Chi. Teachers Union, Local No. 1 v. Bd. of Educ. of City of Chicago, 797 F.3d 426, 432-33 (7th Cir. 2015)). 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. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012) (citing Siegel v. Shell Oil Co., 612 F.3d 932, 935 (7th Cir. 2010)).

         “The general gate-keeping function of Federal Rule 23(a) ensures that a class format is an appropriate procedure for adjudicating a particular claim . . . .” Bell, 800 F.3d at 373. Rule 23(a) imposes four requirements that must be satisfied: numerosity, commonality, typicality, and adequacy of representation. Fed.R.Civ.P. 23(a). “In conducting this analysis, the court should not turn the class certification proceedings into a dress rehearsal for the trial on the merits.” Messner, 669 F.3d at 811. Nevertheless, “a court may not simply assume the truth of the matters as asserted by the plaintiff. If there are material factual disputes, the court must ‘receive evidence . . . and resolve the disputes before deciding whether to certify the class.'” Id. (quoting Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001)). The plaintiff bears the burden of showing that a proposed class satisfies Rule 23's requirements by a preponderance of the evidence. Id.

         Under Rule 23(a)(1), the plaintiff must show that “the class is so numerous that joinder of all members is impracticable.” The Seventh Circuit has recognized that classes consisting of as few as forty members could satisfy numerosity. See Pruitt v. City of Chicago, 472 F.3d 925, 926-27 (7th Cir. 2006); In re Modafinil Antitrust Litig., 837 F.3d 238, 250 (3d Cir. 2016), as amended (Sept. 29, 2016) (“Leading treatises have collected cases and recognized the general rule that ‘[a] class of 20 or fewer is usually insufficiently numerous . . . [a] class of 41 or more is usually sufficiently numerous . . . [while] [c]lasses with between 21 and 40 members are given varying treatment.'” (quoting 5 James Wm. Moore, et al., Moore's Federal Practice § 23.22)). “When the number of proposed class members is relatively small, it is less reasonable to infer in the absence of evidence that joinder is impractical.” De Leon v. Grade A Constr., Inc., No. 16-CV-348-JDP, 2017 WL 6375821, at *2 (W.D. Wis. Dec. 13, 2017). “A variety of factors, including the nature of the action, the size of the individual claims, and the location of the members of the class or the property that is the subject matter of the dispute may contribute to the court's decision under Rule 23(a)(1) in a given case.” 7A Federal Practice & Procedure § 1762 Joinder of All Class Members Must Be Impracticable (3d ed.).

         The current putative class stands at 37 employees. One class member lives in North Carolina, another in Georgetown, Illinois, and the remaining class members live in an approximately 50 mile geographic radius in counties that are within the jurisdiction of the Eastern District of Wisconsin. Anderson contends that the actual number of employees in the class will be over 40 by the time the court decides the motion for class certification due to the likelihood of new hires given the seasonal nature of roofing work. Weinert hired 8 new hourly job site employees in 2016, 12 in 2017, and 9 in 2018. But because Anderson is not seeking injunctive relief, “any certified class could not include future employees.” De Leon, 2017 WL 6375821, at *3. Including future employees in the putative class would require improper reliance on speculation that any future employees are subject to the same policies at issue here, that Weinert has not altered or changed its policies in response to litigation, and that the future employees have experienced the same type of harm based upon the same theory of liability as asserted by Anderson. See Ocampo v. GC Servs. Ltd. P'ship, No. 16-CV-9388, 2018 WL 6198464, at *4 (N.D. Ill. Nov. 28, 2018) (“estimates ‘may not be based on pure speculation.'” (quoting Murray v. E*Trade Fin. Corp., 240 F.R.D. 392, 396 (N.D. Ill. 2006))). In short, the court will only consider those 37 employees who worked during the time period between June 14, 2016 and the end of 2018 in analyzing the numerosity requirement.

         Although there are 37 employees in the proposed class, the actual number of participants would likely be smaller as evidenced by the fact that only three employees consented to joining the FLSA collective action. See De Leon, 2017 WL 6375821, at *2 (noting that “interest in joining the class appears to be weak, suggesting that the actual number of class members may be significantly fewer than 20. Only three employees other than Ramirez have consented to join the FLSA claim, Dkts. 83-85, which raises the same issue about banking as the state law claim.”); see also Franklin Container Corp. v. Int'l Paper Co., No. 77-3204, 1982 WL 1958, at *2 (E.D. Pa. May 12, 1982) (“Given the overwhelming lack of interest in this litigation shown by members of the potential class, I believe plaintiffs have failed to establish that the class is so numerous that joinder of all members is impracticable.”). In addition, Anderson “does not allege that it would be difficult to locate and contact each potential plaintiff to ask whether he or she would be interested in joining the case.” De Leon, 2017 WL 6375821, at *2; B.N. ex rel. A.N. v. Murphy, No. 3:09-CV-199-TLS, 2011 WL 4496510, at *7 (N.D. Ind. Sept. 27, 2011) (stating that joining other members of an alleged class “should not be burdensome” when all of the potential plaintiffs are known to the named plaintiff). Nor could he, as Anderson already has all of their addresses. Dkt. Nos. 25-1, 25-2. Although two of the potential plaintiffs live outside of Wisconsin, the remaining members are clustered within a 50-mile radius in the Eastern District ...


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