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Abukar v. Reynolds Machine Co. LLC

United States District Court, E.D. Wisconsin

December 18, 2019

ABDIFATAH ABUKAR, Plaintiff,
v.
REYNOLDS MACHINE CO. LLC, and SUSSEK MACHINE COMPANY LLC, Defendants.

          ORDER

          J.P. STADTMUELLER U.S. DISTRICT JUDGE.

         On July 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 (“Sussek”) (collectively, “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 granted.

         1. RELEVANT FACTS

         Reynolds, 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.

         Beginning 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 relevant part:

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 at 4).

         According 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.

         Abukar 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 shifts.

         2. ANALYSIS

         2.1 Conditional Certification

         Conditional 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 ...


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