The opinion of the court was delivered by: Magistrate Judge Bissoon
Plaintiffs‟ Motion for Court-facilitated notice to putative collective action members (Doc. 3) will be granted as described below.
The allegations and evidence submitted in connection with Plaintiffs‟ Motion are well known to the parties, and will not be repeated here. Also familiar to counsel are the decisions in Camesi v. University of Pittsburgh Medical Center, Civil Action No. 09-85J (W.D. Pa.) (Bissoon, M.J., presiding) and Kuznyetsov v. West Penn Allegheny Health Sys., Inc., Civil Action No. 09-379 (W.D. Pa.) (Ambrose, C.J.).
This Court will follow Chief Judge Ambrose‟s well-reasoned decision in Kuznyetsov, which held, among other things, as follows:
* At stage one of the conditional certification determination, Plaintiffs are required "to show a factual nexus between their situation and the situation of other current and former [employees] sufficient to determine that they are "similarly situated.‟"
See Doc. 81 in Civil Action No. 09-379 at 3-4 (hereinafter the "June 1st Order in Kuznyetsov") (citations and some internal quotations omitted). In other words, Plaintiffs must provide "a sufficient factual basis on which a reasonable inference could be made" that the putative collective action members are similarly situated. Id. at 4.
* The statements in Plaintiffs‟ affirmations regarding "other employees," which are materially similar to those in Kuznyetsov, are inadmissible hearsay, and they will not be considered for the purposes of conditional certification. See id. at 6.
* Like the opt-in consent forms presented in Kuznyetsov, the ones filed here are sufficiently vague and ambiguous that they lack probative value on the issue of similar situation. See id. Thus, the opt-in forms in this case will not be afforded evidentiary weight. See id.
* Like the affiants in Kuznyetsov, the affiants here do not claim that they were required or permitted to work during meal periods exclusively as a result of patient care needs. Compare id. to, e.g., Doc. 5-7 at ¶¶ 9, 16 (affiant was not "relieved by another employee" during her break, and employer‟s short-staffing required her to perform more work than could be accomplished if she took her meal break) and Doc. 5-8 at ¶¶ 9, 16 (stating same).
With these preliminary matters established, the Court now turns to the substance of Plaintiffs‟ Motion for conditional certification.
Plaintiffs have submitted the affirmations of eight former employees of the Mercy Hospital of Pittsburgh ("Mercy Hospital"), swearing that, during their employment, a computerized, automated meal break deduction of 30 minutes was applied to their pay records each workday. See, e.g., Doc. 5-8 at ¶¶ 4, 5.*fn1 The affiants also allege that Mercy Hospital was aware of, permitted and/or demanded that they work through meal breaks without compensation. See, e.g., id., at ¶¶ 24, 25. Under the circumstances, the automatic meal deduction policy alleged in this case is materially similar to those in Camesi and Kuznyetsov. See, e.g., June 1st Order in Kuznyetsov at 7-9 (application of automatic deduction policy potentially violated employer‟s duty "to ensure that [its] employees [we]re receiving the[ir] full meal break").
That Mercy Hospital‟s purported policy appears to have gone unwritten, unlike the ones in Camesi and Kuznyetsov, is not dispositive. See, e.g., Crawford v. Lexington-Fayette Urban County Gov‟t, 2008 WL 2885230, *7 n.6 (E.D. Ky. Jul. 22, 2008) (plaintiffs demonstrated similarly situation because they engaged in work activity during their meal breaks, and FLSA violation could be established through unwritten policy instructing that such work must be performed) (citation omitted); Musarra v. Digital Dish, Inc., 2008 WL 818692, *4-5 (S.D. Ohio Mar. 24, 2008) (granting conditional FLSA certification based on plaintiffs‟ allegations of employer‟s unwritten policy). Mercy Hospital does not expressly deny that such a policy existed,*fn2 and, even if Defendants did, this would not provide a basis for refusing certification. See Order in Camesi dated May 15, 2009 at 6 ("[a] plaintiff's burden at [the] preliminary stage is minimal," and "the court does not weigh the merits, resolve factual disputes, or make credibility determinations") (citation to quoted source omitted).
In sum, Plaintiffs have presented sufficient evidence to create a "reasonable inference" that workers at Mercy Hospital were similarly situated. See discussions supra. The same cannot be said of the other locations referenced in the Complaint.*fn3
All of Plaintiffs‟ affiants worked at Mercy Hospital. None of the affiants have demonstrated personal knowledge regarding the policies that are, or were, in effect at any other facility. Plaintiffs have offered only allegations ...