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Robles v. Brunswick Corp.

United States District Court, E.D. Wisconsin

January 9, 2020

SANDY ROBLES, Individually and on Behalf of All Others Similarly Situated, Plaintiff,


          William E. Duffin U.S. Magistrate Judge.

         Plaintiff Sandy Robles brings this suit on behalf of herself and all others similarly situated against her employer, Defendant Brunswick Corporation d/b/a Mercury Marine, alleging that “Mercury Marine has a common policy and practice of impermissibly rounding the start and end times of its production and maintenance employees' work hours so as to deny such employees for [sic] compensation for all hours worked.” (ECF No. 23, ¶ 1.) Robles alleges this was done in violation of the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq., and Wisconsin wage and hour laws, Wis.Stat. §§ 109.01 et seq., 104.001 et seq., 103.01 et seq.; and Wis. Admin. Code §§ DWD 272.001 et seq., 274.001 et seq.

         Before the court is Robles's motion for conditional class certification and court facilitated notice. (ECF No. 24.) The motion only addresses the potential federal law violation and asks the court to certify the following collective action class:

All production and maintenance employees who are or have been employed by Mercury Marine at it's [sic] Fond du Lac campus, including Plants 3, 4, 15, 15L, 15S, 17, and 98 at any time since November 15, 2015.

(Id. at 1.) Robles also requests that the court appoint counsel of record as collective action counsel, order the defendant to produce within thirty days[1] a list of all people known to the defendant who belong to the proposed class, and allow potential collective action members forty-five days from the date of the mailing of the notice to opt in. (Id. at 1-2.)

         All parties have consented to the full jurisdiction of a magistrate judge. (ECF Nos. 111, 114.) Briefing on the motion is complete and the matter is ready for resolution.

         1. Background

         Mercury Marine's corporate headquarters are located in Fond du Lac, Wisconsin. (ECF No. 96, ¶ 2.) It is a marine propulsion manufacturer and sells marine parts and accessories. (ECF No. 28-1 at 24.) Its Fond du Lac campus[2] is broken into seven different plants: 3, 4, 15, 15L, 15S, 17, and 98. (Id. at 24-25.) Each facility has production employees, but not every facility has maintenance employees. (Id. at 26.)

         As of May 1, 2019, the Fond du Lac location had 2, 276 production and maintenance employees. (ECF No. 28-1 at 28.) There are several different job classifications (for example, I, II, III, and line leader) and job titles (such as Machinist Technician, Die Cast Supertech, Paint Technician, and Assembly Tech Line Leader) among the production and maintenance employees. (ECF No. 96, ¶ 3.) The production and maintenance employees are represented by the International Association of Machinists (the Union). (ECF No. 28-1 at 26.) According to Mercury Marine's compensation policies and procedures, employees must be paid for all the time they are scheduled to and actually work. (ECF No. 96, ¶ 5.) However, employees are subject to discipline if they work overtime without receiving prior approval. (ECF Nos. 28-8, 28-9, 28-10, 28-11, 28-12, 28-13.)

         To keep track of the employees' time worked, Mercury Marine uses an attendance timekeeping system called Kronos. (ECF No. 28-1 at 66.) An employee places her badge in front of the machine to “punch in” or “wand in” and a green light will flash. (Id. at 67.) While the employee's schedule does not automatically display, the employee can view it. (See ECF No. 98-3 at 21-22.) Employees are taught how to use this system during their training. (ECF No. 28-1 at 67.)

         Employees can punch in anytime within the twenty-nine minute window before the beginning of their scheduled shift. (ECF No. 28-6 at 2.) However, for compensation purposes the time will round up to the employee's scheduled start time. (ECF No. 28-1 at 102.) For example, if an employee's shift is scheduled to begin at 10:30 a.m. but she punches in at 10:01 a.m., her time for compensation purposes will begin at 10:30 a.m. Similarly, an employee has fourteen minutes[3] after the end of her scheduled shift to punch out. (ECF No. 28-1 at 116.) Again, however, the time is rounded back to the end of the employee's scheduled shift. (Id.) For example, if an employee's shift is scheduled to end at 5:00 p.m but she punches out at 5:13 p.m., her time for compensation purposes rounds back to 5:00 p.m. Any punches recorded more than twenty-nine minutes pre-shift or more than fourteen minutes post-shift are flagged as an exception, and a supervisor must approve the time. (Id. at 116-17.) If an employee punches in late or punches out early, the time is tracked by the minute, and the employee is only paid for the time actually worked. (Id. at 104.)

         Rather than calling this “rounding, ” Mercury Marine refers to the process as a “grace period.” (ECF No. 28-1 at 103.) It asserts that the purpose of the grace period is to allow employees to avoid lines at the time machine at the start and end of their shifts. (Id. at 103-04.) After punching in, but before the start of the scheduled shift time, the employees are free to chat with co-workers, read the newspaper, have a cup of coffee, or do whatever other non-work activity they wish to do. (Id. at 103.) A bell rings at the start and end of the shift. (Id. at 157.)

         Robles claims that Mercury Marine's rounding policy has caused her and the putative collective action class members to be undercompensated for work performed after punching in but before the scheduled start of the shift and for work performed after the scheduled end of the shift but before punching out. (See ECF Nos. 28-2 at 43, 96-97, 104, 113; 25, ¶ 16; 26, ¶ 16; 27, ¶ 16.) Seven plaintiffs have opted in to the class: Guy Damerow, Andrew Fox, David Hall, Alexandria Lockwood, Matthew Morreau, Ray Pfantz, and Donnie Samuel. (ECF Nos. 14, 15, 19.) Hall has been deposed. (ECF No. 98-3.) Lockwood (ECF No. 25), Hall (ECF No. 26), and Fox (ECF No. 27) each submitted a declaration. Six other prospective class members originally opted in but have since dropped out of the class: four were terminated for lack of prosecution relating to their failure to respond to discovery requests (ECF No. 118), and two opted out after previously opting in (ECF No. 21). See Hatton v. Cablecom, LLC, No. 14-CV-1459, 2015 WL 4113441, at *6 (E.D. Wis. July 8, 2015) (“[C]ourts have found that a ‘demonstrable lack of interest in a collective action is a strike against certification[.]'”) (citing Hadley v. Journal Broad. Group, Inc., No. 11-CV-147, 2012 U.S. Dist. LEXIS 19452, at *15 (E.D. Wis. Feb. 16, 2012)).

         Opt-in plaintiff Lockwood declares that she does the following pre-shift work:

I would talk with the individual working at [the] workstation from the prior shift about what I was going to be working on during my shift and the work orders. Additionally, I would talk to this individual about any problems he or she had encountered and how to deal with those problems.

(ECF No. 25, ¶ 9.) She states that she “needed to take these actions to be able to perform [her] job at the scheduled shift time[, ]” and “[t]his work that [she] would perform prior to the scheduled shift-start time was integral to [her] assigned job duties and [she] could not efficiently perform [her] job without doing these tasks.” (Id.) Lockwood states that she is

aware of many other Mercury Marine employees working during the 29-minute pre-shift period as [she] sees them performing work. It is a common occurrence that happens daily. Mercury Marine has fostered a culture that permits its employees to perform work during the 29-minute pre-shift period. This pre-shift ...

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