United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE.
31, 2019, plaintiff Abdifatah Abukar (“Abukar”)
filed an amended complaint in this action alleging violations
of the Fair Labor Standards Act (“FLSA”), 29
U.S.C. § 201 et seq., and Wisconsin wage and
hour laws, Wis.Stat. §§ 109.01, 104.01, 103.01
et seq.; Wis. Admin. Code §§ DWD 272.001,
274.001 et seq.. (Docket #16). The defendants in
this case are Reynolds Machine Co., LLC
(“Reynolds”) and Sussek Machine Company, LLC
“Defendants”). Abukar seeks to bring his 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 August 13, 2019, Abukar filed a motion for
conditional certification of his FLSA claim as a collective
action. (Docket #17). Defendants sought a forty-five-day
extension to respond to this motion so that the parties could
explore a settlement. (Docket #25). The Court granted the
extension, which ultimately proved fruitless. On October 18,
2019, Defendants opposed the motion for class certification,
which is now fully briefed. For the reasons stated below,
Abukar's motion for conditional certification will be
now owned by Sussek, manufactures precision machinery parts
such as truck axels, airplane parts, and brakes from a single
plant in New Berlin, Wisconsin. Reynolds employees typically
work on an hourly basis. All hourly employees are subject to
the employment policies set forth in the employee handbook
(the “Handbook”). Pursuant to the Handbook, all
hourly employees must be prepared to begin working at the
start of their shifts, which is indicated by the sound of a
buzzer. Additionally, all hourly employees must receive
permission before working overtime, which is compensated at a
rate of one-and-a-half times their hourly wage.
on June 5, 2016, Reynolds instituted a policy that rounded
its hourly workers' start and end times to thirty-minute
intervals. The policy appears in the Handbook. It states, in
Employees are required to be at work area and start on time.
Timeclock must be swiped prior to the half hour of schedule
starting time. Any swiping in after the scheduled start time
will be counted as the next half hour. Examples:
5:50, 5:55, 5:58, is on time. 6:01, 6:02, 6:03 is considered
late and will be counted from the next half hour.
Punching out at 4:00 p.m., 2:00 a.m., and 4:00 a.m. is
considered a full schedule. Punching out before the hour is
considered early and would be counted back to the prior half
hour (example 3:30).
There will be no overlapping of hours, i.e., 6:01 and 4:31.
Timecards must be punched on, or prior to, the even hour, or
half hour, and punched out in the same manner. (Docket #20-1
to this policy, the start and end times are not rounded to
the nearest thirty-minute interval. Rather, they are rounded
up or down to the interval that results in the least
financial obligation for the employers. So, for example, if
an employee clocked in at 6:01 a.m., Reynolds would round the
start time up to 6:30 a.m., resulting in the employee
working, but not getting paid, for 29 minutes. Similarly, if
an employee clocked out at 2:59 p.m., Reynolds would round
down to 2:30 p.m., resulting in the employee working, but not
getting paid, for 29 minutes. Also under this scheme, if an
employee permissibly continued working past their shift, they
would not be paid overtime wages unless they worked the full
30 minute period after their shift ended. Reynolds states
that any uncompensated time in the rounding period is not to
be used for work-rather, it is for workers to get to their
workplaces and settle in. Employees are responsible for
reporting discrepancies or errors in their time sheets.
contends that employees begin work immediately upon arriving
at the plant, and continue working up until the moment they
clock out. Their tasks at the beginning of the day involve
setting up their workspaces and obtaining tools. Their tasks
at the end of the day include cleaning up their workspaces
and putting tools away. All hourly employees reported to
Shift Supervisors, who are responsible for setting schedules.
The Shift Supervisors are not responsible for ensuring that
employees who clock in early do not begin working
immediately. Similarly, the Shift Supervisors are not
responsible for ensuring that employees wrap up their shifts
early enough to conclude their clean-up tasks within their
certification of a collective action is distinct from the
procedure normally applied to class litigation under Federal
Rule of Civil Procedure 23. Woods v. N.Y. Life Ins.
Co., 686 F.2d 578, 579-80 (7th Cir. 1982). In an FLSA
action, class members must “opt in to be bound, while
[Rule 23 class members] must opt out not to be bound.”
Id. Conditional certification enables notification
to putative class members so that they may affirmatively opt
in to the collective action and class discovery may be taken.
29 U.S.C. § 216(b); Woods, 686 F.2d at 579-80.
Once this is done, the plaintiff can move for final, full
certification of the collective action, at which point the
Court will “reevaluate the conditional certification
‘to determine whether there is sufficient similarity
between the named and opt-in plaintiffs to allow ...