Creely v. HCR ManorCare, Inc.

920 F. Supp. 2d 846, 20 Wage & Hour Cas.2d (BNA) 1116, 2013 WL 377282, 2013 U.S. Dist. LEXIS 13305
CourtDistrict Court, N.D. Ohio
DecidedJanuary 31, 2013
DocketCase No. 3:09 CV 2879
StatusPublished
Cited by15 cases

This text of 920 F. Supp. 2d 846 (Creely v. HCR ManorCare, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Creely v. HCR ManorCare, Inc., 920 F. Supp. 2d 846, 20 Wage & Hour Cas.2d (BNA) 1116, 2013 WL 377282, 2013 U.S. Dist. LEXIS 13305 (N.D. Ohio 2013).

Opinion

MEMORANDUM OPINION AND ORDER

JACK ZOUHARY, District Judge.

Introduction

Before this Court are Plaintiffs’ Motion for Final Certification (Doc. 223) of a class conditionally certified under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b), and affiliated Defendants’ Motion to Decertify the Conditionally Certified Class (Doc. 215). The Motions have been fully briefed (see Docs. 216, 224, 227 & 228). At issue is whether Plaintiffs are similarly situated with respect to Defendant HCR’s (Defendant) implementation of a timekeeping policy that automatically deducted thirty minutes from timecards of hourly employees who worked more than a set number of hours (the “auto-deduct policy”). If Plaintiffs are similarly situated, this case may proceed as a collective action under the FLSA; if not, this Court must decertify the class.

Background

This Court discussed the factual background of this case extensively in its Memorandum Opinion and Order granting conditional certification (Doc. 100). Creely v. HCR ManorCare Inc., 789 F.Supp.2d 819 (N.D.Ohio 2011). For purposes of this decision, the following abbreviated background suffices.

Defendant is a nationwide provider of short- and long-term medical and rehabilitation care with more than three hundred facilities under several trade names, employing roughly 44,000 nonexempt hourly employees (meaning FLSA overtime requirements apply to them) (Doc. 78 at 5). Defendant’s facilities are generally organized into two divisions — assisted living and skilled nursing (id.). The residents served and staffing needs at each facility vary as to contractual and legal requirements (id. at 6). However, Defendant develops company-wide policies, including those relating to compensation and training, at its headquarters in Toledo, Ohio. Each facility has a local management team and human resources support personnel responsible for implementing and complying with corporate policies (id.).

One of these company-wide policies is a requirement that hourly employees take daily, uncompensated meal breaks. Defendant uses a computerized timekeeping systems, Kronos, to automatically deduct a thirty-minute meal period from hourly employee timecards when an employee works a shift of more than five or six hours (Doc. 35 at 12). Under this system, employees clock in at the beginning of a shift and clock out at the end of a shift; they do not clock in and out for a meal break. Until the spring of 2010, if an employee was unable to take an uninterrupted thirty-minute meal break, the employee was required to fill out a form (“missed punch form”) and submit it to a manager, who would then sign it and submit it to payroll personnel. Payroll personnel would then adjust the timecard to reverse the automatically deducted thirty minutes so the employee would be properly paid for all time actually worked (id. at 13).

Plaintiffs, non-exempt hourly workers at HCR facilities across the country, allege they were denied overtime wages in violation of the FLSA’s minimum wage requirements due to Defendant’s implementation of the auto-deduct policy (Doc. 17 at 13). Plaintiffs do not argue the auto-deduct policy is illegal, nor do they argue Defendant had an unofficial “policy to violate” its [850]*850lawful policy. Rather, Plaintiffs allege employees subject to Defendant’s uniform auto-deduct policy either missed or worked through meal breaks and were not paid for many of those breaks because (1) Defendant illegally shifted the burden of monitoring “compensable work time” to individual employees by (a) requiring employees to cancel the automatically deducted thirty minutes when they did not receive an “uninterrupted meal break” and (b) by not defining the term “uninterrupted meal break;” (2) Defendant took no affirmative measures to monitor whether Plaintiffs actually received their meal breaks; (3) Defendant failed to train or inform employees or management what to do if a meal break was missed or interrupted; and (4) Plaintiffs did not report missed or interrupted meal breaks because Defendant did not train them or discouraged them from doing so (Doc. 224 at 9).

This Court granted conditional certification to the class, finding Plaintiffs were similarly situated with respect to their allegations that Defendant’s implementation of the auto-deduct policy violated the law (Doc. 100 at 38-39). Because the total size of this class could be greater than 44,000 employees, this Court and the parties agreed to send notice to a sample class of 3,239 current and former HCR employees from twenty-nine facilities located in twenty-eight states (see Doc. 119). Eventually, 318 current or former employees opted into this action. These opt-ins held various nonexempt, hourly positions at HCR facilities, and include registered nurses, licensed practical nurses, certified nursing assistants, and admissions coordinators.

Following the opt-in deadline, the parties conducted further discovery, which included the depositions of seventy-eight opt-in Plaintiffs and HCR human resource directors from twenty-six HCR locations across the country (Doc. 224 at 7). Discovery at this stage focused on whether Defendant’s implementation of the auto-deduct policy was similar across all its facilities such that Plaintiffs would be similarly situated with regard to a common FLSA-violating policy or practice. At the close of discovery, Plaintiffs moved for final certification of the class, while Defendant moved to decertify the class.

Discussion

FLSA Collective Action Certification

The FLSA provides a private cause of action against an employer “by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). Collective actions brought by employees under the FLSA require putative class members to opt into the action by giving their “consent in writing to become such a party,” and are generally termed, the “class.” (Although a group of plaintiffs in a collective action under the FLSA is not technically a “class” as defined under Federal Civil Rule 23, for simplicity this Opinion uses the term “class” as a short-form reference to the putative group of opt-in plaintiffs in this proposed collective action.) The statutory standard for bringing a collective action under the FLSA is that the opt-in plaintiffs are “similarly situated,” which does not mean plaintiffs need to be identical, but does require a showing that opt-in plaintiffs are similarly situated to the lead plaintiffs. O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 584 (6th Cir.2009).

Traditionally, courts in the Sixth Circuit follow a two-stage certification process to determine whether a proposed group of plaintiffs is “similarly situated.” The first, or “notice” stage, takes place at the beginning of discovery with a focus on determining whether there are plausible grounds for plaintiffs’ claims. If so, plaintiffs are permitted to solicit opt-in notices, under court supervision, from current and former [851]*851employees. The second stage occurs after “all of the opt-in forms have been received and discovery has concluded.” Comer v. Wal-Mart Stores, Inc.,

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920 F. Supp. 2d 846, 20 Wage & Hour Cas.2d (BNA) 1116, 2013 WL 377282, 2013 U.S. Dist. LEXIS 13305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/creely-v-hcr-manorcare-inc-ohnd-2013.