The opinion of the court was delivered by: Magistrate Judge Bissoon
Plaintiffs' Motion (Doc. 160) to enforce the Court Order dated May 14, 2009, which is construed as a Motion for clarification, will be granted to the extent described below.
Defendants take the position that FLSA notice should be restricted to hourly workers employed by the named Defendants. See generally Defs.' Opp'n Br. (Doc. 179) at 4-5.
In opposing conditional FLSA certification and notice, Defendants represented, among other things:
"The various UPMC entities[, not specifically identified in Defendants' brief,] employ approximately 30,000 non-exempt [workers], all of whose time and attendance is tracked on the KRONOS system"; and "The UPMC Compensation Policy is communicated to hourly employees via the UPMC Infonet, a network available to all UPMC employees."
See Defs.' Doc. 93 at 2 n.2 and 6.
Defendants' briefing, by statement and omission, led the Court and Plaintiffs to believe that all employees subject to the UPMC Compensation Manual and the KRONOS system's automatic meal break deductions fell within the pool of potential notice recipients. See, e.g., May 14th Order (Doc. 104) at 1 ("Defendants have confirmed . . . that all of UPMC's . . . non-exempt employees have thirty minutes automatically deducted for meal breaks") (emphasis added); id. at 7 (highlighting "uniform, written policies in UPMC's Compensation Manual," "which apply to all non-exempt employees"); and id. at 9 (noting "the admitted existence of written policies affecting all non-exempt employees, regardless of job title or work location") (emphasis added).
Defendants' basis for seeking to restrict the notice pool appeared not in their detailed, twenty-nine page opposition brief, but in an affidavit referenced therein. Specifically, Charles Donina, "Senior Director[ of] Compensation, HRIS and Payroll for UPMC," stated that KRONOS was utilized by all "entities that are named as [D]efendants in this case." See Doc. 92 at ¶ 2; see also id. at ¶ 3 (""UPMC' . . . refer[s] to all of the entities named as [D]efendants in this case").*fn1
Defendants' submissions were insufficient to place Plaintiffs, or the Court, on notice of Defendants' desire to restrict the collective action to employees of the "named" Defendants. See discussions supra; cf. also Compl. at ¶¶ 14-15 (identifying dozens, if not hundreds, of "[the] Named Defendants[']" health care and "affiliated" facilities).*fn2 To the extent that employees of unnamed affiliates were subject to the UPMC Compensation Manual and KRONOS deductions, they appropriately fall within the conditional FLSA certification granted by the Court. See generally May 14th Order (finding certification appropriate based on UPMC Compensation Manual and KRONOS system's automatic meal break deductions).
Even assuming the Court had reason to anticipate Defendants' arguments regarding unnamed entities whose employees were subject to the UPMC Compensation Manual and KRONOS deductions, Plaintiffs could easily remedy the situation through expedited discovery and an amendment of the pleadings. In this regard, there is little justification for expending additional time and resources of the parties and the Court, especially given Defendants' failure to meaningfully address the issue previously.*fn3
For all of these reasons, Defendants shall produce information, consistent with the Court's prior Orders, regarding all remaining employees who were subject to UPMC's Compensation Manual and computerized, automatic meal break deductions. Defendants shall produce such information by August 17, 2009, and, upon receipt, Plaintiffs shall mail to the additional employees the FLSA notice approved in this case, consistent with the Court's prior instructions.*fn4
Cathy Bissoon United States ...