The opinion of the court was delivered by: Conti, District Judge.
Pending before the court is a motion to decertify the conditionally certified collective action (ECF No. 1608). The motion was filed by defendant Alderwoods Group ("Alderwoods" or "defendant") on January 31, 2011. Plaintiffs Deborah Prise and Heather Rady (together with opt-in plaintiffs, "plaintiffs"), on behalf of themselves and all employees similarly situated, moved to conditionally certify a collective action pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b). Defendant asserts the conditionally certified class is ripe for decertification because, after years of litigation and extensive discovery, plaintiffs, who number in excess of seven hundred, did not meet their burden under the FLSA to demonstrate they are similarly situated. Because plaintiffs did not satisfy their burden to show they are similarly situated, the motion to decertify will be granted.
On December 8, 2006, plaintiffs instituted this lawsuit as a putative collective action. (ECF No. 1.) On May 18, 2007, the court initially conditionally certified the collective action to encompass seven employment positions and five employment policies. (See Order on Collective Action (ECF No. 224) at 1.) On November 29, 2007, plaintiffs filed an amended complaint. (Am. Compl. (ECF No. 819).) On July 14, 2008, the court entered a second order that added two employment positions to the action (funeral services support-4 and location administrator). (See Second Order on Collective Action (ECF No. 1148) at 1.) On July 22, 2008, the court issued a discovery order permitting the parties, inter alia, to take discovery relating to twenty-three individuals (including named plaintiffs) ("sample plaintiffs"). (Disc. Order (ECF No. 1155) at 3.) On December 20, 2010, the court held a motion hearing and included a sixth employment policy related to meal break compensation under the FLSA. (See 12/20/2010 minute entry.) At the hearing, the parties stipulated that it was unnecessary to send further notice regarding the meal break policy. (Id.)
On January 31, 2011, defendant filed the motion for decertification of the conditionally certified collective action. On June 13, 2011, the court held oral argument on the decertification motion and other outstanding miscellaneous motions. The court permitted the parties to conduct a one-hour supplemental deposition of Federal Rule of Civil Procedure 30(b)(6) witness Ron Collins ("Collins"), an Alderwoods‟ vice president of operations for the Northeast United States and Canada from 1999 to 2006 (Def.‟s Reply (ECF No. 1616), Ex. I ¶ 2.), and requested supplemental briefing concerning the overlapping legal standards, if any, between class action certification under Rule 23 of the Federal Rules of Civil Procedure and collective action certification under § 216(b). The parties filed their supplemental briefing with the court and the decertification motion is ripe for consideration.
A. The conditionally certified collective action and the five classes
The conditionally certified collective action consists of individuals from nine employment positions maintaining claims for five "policies" concerning alleged nonpayment of overtime, in violation of the FLSA.*fn1 (Id. at 4.) The nine funeral home positions are: (1) apprentice funeral director/embalmer; (2) arranger; (3) assistant funeral director; (4) community relations director; (5) funeral director/embalmer; (6) funeral director; (7) location manager; (8) funeral services support-4; and (9) location administrator. *fn2 (See Pls.‟ Status Report (ECF No. 1628), Ex. 1 ("Job Chart") at 2.) The five policies implicated in this action are: (a) community work; (b) on-call work; (c) overtime preapproval; (d) training for insurance licenses; and (e) meal break work. Plaintiffs contend that defendant‟s motion should be denied because the record evidence demonstrates they satisfied the "similarly situated" requirement of the FLSA. (Pls.‟ Resp. (ECF No. 1611) at 1.) Plaintiffs maintain that Alderwoods‟ pay policies were implemented on a national level and were systematically enforced at each funeral home location. (Id. at 1-2; see Ex. 64 ("Leahy Decl.") ¶ 4.)
1. Characteristics of the conditionally certified collective action
Alderwoods is a national corporation engaged in the funeral home business. (Am. Compl. at 2.) Generally, the 721 opt-in plaintiffs are nonexempt employees or former employees of Alderwoods who allege they were suffered or permitted to work by Alderwoods and not paid their regular or statutorily required rate of pay for all hours worked. (Id. at 3; Def.‟s Mot. at 4.) Sample plaintiffs are representative of Alderwoods‟ national presence, hailing from states such as Pennsylvania, Georgia, California, Oklahoma, Louisiana, Alaska, Kansas, Texas, Arizona, Indiana and Washington.
Plaintiffs allege that Alderwoods maintained a corporate-wide policy of encouraging or requiring employees to perform community work for Alderwoods‟ benefit without compensating employees for performing such work when it occurred outside their regular work hours. *fn3
Plaintiffs contend that, at a minimum, Alderwoods expected or encouraged employees to be involved in community work. (See Pls.‟ Resp. at 7; see generally Pls.‟ App. (ECF No. 1612), Ex. 74 ("Pls.‟ Collins Dep.").) Plaintiffs argue that Alderwoods required them to perform community work for the benefit of the company, and that time was compensable under the applicable caselaw. See, e.g., Dade Cnty., Fla. v. Alvarez, 124 F.3d 1380, 1384 (11th Cir. 1997) (courts construe work under the FLSA to include all activities controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and its business). Notably, the applicable federal regulation provides that
[t]ime spent in work for public or charitable purposes at the employer‟s request, or under his direction or control or while the employee is required to be on the premises, is working time. However, time spent voluntarily in such activities outside of the employee‟s normal working hours is not hours worked.
29 C.F.R. § 785.44; see Falcon v. Starbucks Corp., 580 F. Supp. 2d 528, 540 (S.D. Tex. 2008) (triable issue existed concerning whether plaintiffs performed required or voluntary community work under 29 C.F.R. § 785.44). Plaintiffs contend that, at a minimum, Alderwoods requested employees to perform public or charitable work, and its failure to compensate employees for that work violated the FLSA.
Plaintiffs direct the court to various discovery materials to show that opt-in plaintiffs are similarly situated to each other and the named plaintiffs. First, plaintiffs assert that the job descriptions of apprentice funeral director/embalmer, arranger, assistant funeral director, funeral director, funeral director/embalmer, community relations director and location manager detailed that employees in those positions were responsible for "retain[ing] heritage and grow[ing] market share through active involvement with community, religious and other organizations." (Pls.‟ App., Ex. 13.)*fn4
Second, plaintiffs argue that Alderwoods‟ mandatory community leadership program ("CLP") emphasized and supported employee involvement in community activities. (See generally Pls.‟ App. Exs. 17-22.) Third, plaintiffs rely upon, inter alia, the deposition testimony of sample plaintiffs and Collins to support their position that Alderwoods required nonexempt hourly employees to perform community work after-hours and failed to compensate them for that work.
Collins testified that it was Alderwoods‟ policy to "encourage support of civic organizations and employee involvement in worthwhile causes." (Pls.‟ Collins Dep. at 137.) Collins opined that, hypothetically, all things being equal between two applicants for a location manager position, the applicant with more community involvement could be more likely to receive the job offer. (Id. at 217-18.)
Plaintiffs provided an email dated October 18, 2004, from Gary Toye ("Toye"), a market general manager in the Carolinas, to Rick Scully, the senior vice president of marketing for Alderwoods, and carbon copied to Katie Leahy, a regional general manager for the Carolinas, Kim Whitehead, a human resources specialist for Alderwoods in Toronto, Canada, and Leanne Sersun, a geographic human resource specialist, stating that community work performed during the work day was considered mandatory and therefore compensated at the employee‟s normal rate of pay. (Pls.‟ App., Ex. 30 ("Toye email"); Collins Supp. Dep. (ECF No. 1631), Ex. C at 317-21.) If, however, the community work occurred after hours, it was strongly encouraged and recognized in a non-monetary way. (Id.)*fn5
Shane Carswell ("Carswell"), a funeral director, opined that he participated in community work for a Gay Pride Parade, but did not record the time and was not compensated for that time. (Def.‟s App. (ECF No. 1608), Ex. R ("Dep. Excerpts"), Tab 4 ("Def.‟s Carswell Dep.") at 124-25.)*fn6 Carswell stated that he did not record the time because he would not be paid for it - performing community work was "just what [employees] were expected to do. It was part of your job. . . . It‟s not something you are going to get compensated for, because that‟s what everyone [w]as doing." (Pls.‟ App., Ex. 73 ("Pls.‟ Carswell Dep.) at 214.)
Carswell explained that Alderwoods‟ failure to compensate employees for performing community work was a corporate-wide policy, based upon his personal knowledge from working in other funeral homes owned by defendant, as well as practices of other Alderwoods‟ employees. (Id.) Carswell opined that the community work he performed generated business for Alderwoods. (Id. at 215.)
Millard Daigle ("Daigle"), a Louisiana funeral director and assistant manager, testified that he participated in two community work events, did not record the time, and was not compensated for that time because he was "just expected to show up." (Dep. Excerpts, Tab 5 ("Def.‟s Daigle Dep.") at 170, 174-75; Def.‟s Reply, Ex. T ("Reply Information Sheets"), Tab 2.) Herbert Bath ("Bath"), an area manager, testified that all Alderwoods employees were required to volunteer their time to outside community organizations. (Pls.‟ App., Ex. 69 ("Pls.‟ Bath Dep.") at 159.) Jason Burgess ("Burgess"), a funeral director and embalmer, did not record the time Alderwoods required he spend performing community work because he was instructed that he would not be compensated. (Pls.‟ App., Ex. 71 ("Pls.‟ Burgess Dep.") at 78-80.)
Richard Kamienski ("Kamienski"), a general manager, stated that Alderwoods required all employees under his supervision to perform community work of their choosing. (Pls.‟ App., Ex. 87 ("Pls.‟ Kamienski Dep.") at 136.) This policy was communicated to Kamienski from Bill Mitchell or Derrick Pate, and Kamienski was required to submit a monthly or bi-monthly report to those individuals detailing community work performed by his subordinates. (Id. at 136-37.) Employees were not permitted to record community work on their time cards. (Id. at 221.) Michael Lanza ("Lanza"), a funeral director and embalmer in Washington, opined that his regional manager for Alderwoods told him that he (Lanza) was required to perform community work, and that the regional manager wanted to see a monthly report reflecting that work. (Pls.‟ App., Ex. 90 ("Pls.‟ Lanza Dep.") at 236-37; Ex. 12 ("Pls.‟ Information Sheets").)
Kasi Long ("Long"), a funeral director, explained why she seeks compensation for performing community work during her employment with Alderwoods: "I do believe that Alderwoods was requiring us to be participants in that community involvement. They looked at it every month, and they did not make accommodations to compensate us for that extra time outside of work hours that we were promoting their business." (Pls.‟ App., Ex. 92 ("Pls.‟ Long Dep.") at 181.)
Beverley McDonald ("McDonald"), a Texas funeral director and embalmer, testified that she was required by her supervisor to join three community service organizations because it was "Alderwoods‟ policy that everybody had to be active in the community and join service organizations." (Pls.‟ App., Ex. 94 ("Pls.‟ McDonald Dep.") at 138-39; Reply Information Sheets, Tab 8.) McDonald did not report her hours performing community work because it was Alderwoods‟ policy not to compensate employees for that kind of work. (Pls.‟ McDonald Dep. at 152-53.) McDonald did not receive compensation for her community work, even after raising the issue with her supervisor. (Id. at 144-45.)
Alderwoods argues that sample plaintiffs‟ testimony differed substantially on whether they were required to do community work, the type of community work performed, time reporting and compensation practices related to community work and the relief they seek.
(Def.‟s Mot. at 5.) Because plaintiffs modified their definition of the community work policy after the opt-in notice was mailed, it is unclear which of the 721 opt-in plaintiffs performed community work after their regularly scheduled hours. (Hr‟g Tr. 6/13/2011 (ECF No. 1624) at 19.) Alderwoods points to testimony regarding a change in the community work compensation policy during the class period as further evidence that opt-in plaintiffs are not similarly situated to the named plaintiffs. (See Dep. Excerpts, Tab 28 ("Def.‟s Rady Dep.") at 61-62.)
With respect to the CLP, Alderwoods contends that the CLP did not require community work to be performed outside regularly scheduled business hours or that such work outside regularly scheduled business hours would be uncompensated. (Def.‟s Reply at 3.) As for the Toye email, Collins stated that Toye was a market general manager in the Carolinas whose responsibilities were limited to six funeral homes, two combination funeral homes/cemeteries, and four cemeteries. (Def.‟s Reply, Ex. I ("Collins Reply Decl.") ¶ 4; Collins Supp. Dep. at 319.) Collins emphasized the Toye email was a misstatement of Alderwoods‟ company policy regarding community work. (Id. ¶ 5.) Collins maintained that Alderwoods‟ policy was to pay employees for all community service performed for the benefit of Alderwoods. (Id.)
A Pennsylvania location manager, Deborah Prise ("Prise"), testified that if she did community work after business hours and sought preapproval for that work, she was compensated for that time. (Dep. Excerpts, Tab 27 ("Def.‟s Prise Dep.") at 88.) Prise recalled one instance where she sought preapproval to perform community work and was partially paid. (Id. at 89.) Prise stated that, at some point, she quit her job because it was general knowledge that if employees engaged in community activity outside business hours, that time would not be preapproved. (Id.)
A Pennsylvania funeral director and embalmer, Heather Rady ("Rady"), explained that at some uncertain time, Alderwoods‟ community work policy changed. (Def.‟s Rady Dep. at 61.) Prior to the change, Rady was not compensated for community work, and after the change, Rady received compensation for that work. (Id. at 61-62.)
Collins stated that he never observed the use of performance improvement plans (i.e., a company method to improve employee performance) to warn employees regarding a failure to participate in community activities. (Pls.‟ Collins Dep. at 219-20.) A location manager, Dennis Baker ("Baker"), testified that employees were encouraged to volunteer their time to community organizations, but Alderwoods did not require community work. (Def.‟s App., Ex. T ("Manager Dep. Excerpts"), Tab 1 ("Def.‟s Baker Dep.") at 128.) A location manager, Ric Hensley, opined that, in the five locations he managed, not all employees joined a civic organization or performed community work. (Manager Dep. Excerpts, Tab 3 ("Def.‟s Hensley Dep.") at 50.) To the extent employees declined to participate in community work, their employment was not negatively impacted by their decision. (Id. at 54-55.) Kamienski explained that he managed employees who did not perform community service. (Manager Dep. Excerpts, Tab 4 ("Def.‟s Kamienski Dep.") at 144.) Specifically, only ten percent of the employees he managed performed community service, and the remaining employees were not disciplined for refusing, directly or indirectly, to perform community work. (Id. at 143-44.)
Besides management testimony, many plaintiffs testified that Alderwoods did not have a policy that required them to perform after-hours community work.*fn7 (See, e.g., defendant‟s deposition excerpts of Alaska funeral director and embalmer, Jeffrey Diggs ("Diggs"), Tab 7 ("Def.‟s Diggs Dep.") at 73; Reply Information Sheets, Tab 3; funeral director Donna Gonzales ("Gonzales"), Tab 13 ("Def.‟s Gonzales Dep.") at 182; funeral director and embalmer, Louise Johnson ("Johnson"), Tab 15 ("Def.‟s Johnson Dep.") at 45; apprentice funeral director/embalmer, Adrian Leal ("Leal"), Tab 20 ("Def.‟s Leal Dep.") at 165; Georgia apprentice funeral director/embalmer, William Ore ("Ore"), Tab 24 ("Def.‟s Ore Dep.") at 99, 112; funeral director, Jack Wilkinson ("Wilkinson"), Tab 37 ("Def.‟s Wilkinson Dep.") at 152-53.)
Plaintiffs allege Alderwoods maintained a corporate-wide policy of suffering or permitting employees to perform various duties while on-call, but not compensating employees for all the time they spent performing on-call work. Plaintiffs assert that opt-in testimony reflected a corporate-wide policy of not recording and compensating employees for work performed while on-call. Specifically, plaintiffs separate their claims for on-call pay into three subgroups: piecework, continuous workday, and phone calls.
First, plaintiffs contend the practice of paying a flat rate for piece work (e.g., removals)*fn8 violated FLSA requirements. See 29 C.F.R. 778.311. Plaintiffs maintain that payroll records reflected that piecework was not properly recorded or paid. (See Pls.‟ Resp. at 13.)
Second, plaintiffs assert that, after receiving a telephone call regarding a removal, time spent by employees preparing to perform a removal (e.g., getting dressed, making or receiving additional telephone calls, traveling to the funeral home and removal site, etc.) was compensable work because it required a continuous workday. (Id. at 14.)
Third, prior to March 2006, Alderwoods did not record or compensate employees for taking telephone calls while on-call. (Pls.‟ Resp. at 16.) Plaintiffs argue that Alderwoods instituted an after-hours call log in an attempt to comply with the FLSA. (Id.) Sample plaintiffs testified, however, that even after the call log, employees were only paid a flat rate of fifteen minutes per call, regardless how much time was actually spent on the call. (Id.)
Initially, Burgess, a funeral director and embalmer, testified that when he worked beyond his scheduled hours, he would record that time, it was never questioned, and he was paid for the time recorded. (Dep. Excerpts, Tab 1 ("Def.‟s Burgess Dep.") at 112.) Burgess stated that Alderwoods started "cracking down" on overtime when a time clock was implemented, and on-call telephone time could not be recorded. (Id. at 137.) Burgess clarified that prior to the time clock, Alderwoods credited employees a flat rate of three hours per removal done while on-call, and employees were only paid for three hours, even if it took longer than three hours to perform the removal. (Pls.‟ Burgess Dep. at 83.) Once Alderwoods implemented the time clock, Burgess could not record and was not compensated for on-call work performed at home (e.g., taking telephone calls, getting dressed, and traveling to the funeral home), because he could not "punch in." (Id. at 82.)
Michael Butler ("Butler"), a funeral director and embalmer in California, explained that his supervisor told him not to submit time for performing on-call services. (Dep. Excerpts, Tab 3 ("Def.‟s Butler Dep.") at 189; Pls.‟ Information Sheets.)
Carswell, a funeral director, testified that Alderwoods did not compensate him for on-call work performed prior to punching the time clock. (Pls.‟ Carswell Dep. at 216-17.) Carswell explained that Alderwoods often paid him a flat rate for performing on-call work, but the flat rate did not always reflect the amount of work he performed. (Id. at 157.)
Steven Detschner ("Detschner"), a funeral director and embalmer, complained to management that he was not compensated for performing on-call work answering and making telephone calls outside the funeral home because employees were not permitted to record that time. (Pls.‟ App., Ex. 76 ("Pls.‟ Detschner Dep.") at 125-26.)
Diggs, a funeral director and embalmer, maintained that Alderwoods‟ practice regarding piecework compensation did not reflect its written policy. (Pls.‟ App., Ex. 76 ("Pls.‟ Diggs Dep.") at 75-77.) Diggs explained that actual time performing piecework was not recorded because Alderwoods only paid a flat rate of $35 per removal, regardless how long it took to perform the removal. (Id. at 76-77.) Diggs did not attempt to record the actual time spent performing removals because he would only be compensated at the flat rate. (Id. at 125.)
An arranger, Stephen Escobar ("Escobar"), explained that he was compensated for all time he recorded. (Dep. Excerpts, Tab 9 ("Def.‟s Escobar Dep.") at 63.) He did not record overtime hours on the weekends because it would upset his district manager. (Id. at 81.) Escobar‟s unrecorded overtime totaled approximately sixteen hours per month. (Id. at 84-85.)
A location administrator, Janet Garmback ("Garmback"), stated that, prior to the acquisition of Alderwoods by Service Corporation International ("SCI"), employees were paid a flat rate of $65 per removal, with no additional hourly pay. (Pls.‟ App., Ex. 80 ("Pls.‟ Garmback Dep.") at 56-57.) Employees received the flat rate regardless how long it took to perform the removal. (Id. at 57.) Removals could take five minutes or five hours and there was no average. (Id.) After SCI‟s acquisition of Alderwoods, employees were required to be compensated on an hourly basis per removal. (Id. at 56.)
Alderwoods argues that opt-in plaintiffs‟ testimony support the proposition that they are not similarly situated for purposes of an FLSA collective action. The testimony differed on issues such as the type of on-call work they performed, compensation practices between funeral home locations and the relief sought. Specifically, Alderwoods asserts that opt-in testimony reflected competing or contradictory policies maintained in Alderwoods‟ funeral homes, including whether employees reported on-call work or whether individuals were compensated for a telephone call. (Def.‟s Reply at 3.)
With respect to piecework, Collins testified that, at certain locations, piecework pay (i.e., paying employees a flat rate for on-call work rather than an hourly rate) existed, but was discontinued somewhere around 2005. (Pls.‟ Collins Dep. at 49-50.) Collins confirmed there was no corporate-wide policy regarding piecework, and that Alderwoods eliminated any instances of the practice at individual funeral homes. (Id. at 53 ("Piecework was a . . . funeral service legacy way of paying employees but it was never an Alderwoods policy that piecework be allowed. . . . We did a . . . location by location review of practices and where we found piecework we eliminated it.").)
An Oklahoma funeral director and embalmer, Jerry Eisenhour ("Eisenhour"), testified that, generally, he would report work performed on the telephone while on-call, and received compensation for the time he reported. (Dep. Excerpts, Tab 8 ("Def.‟s Eisenhour Dep.") at 158; Def.‟s App., Ex. L ("Def.‟s Information Sheets").)
Prise, a Pennsylvania location manager, testified that, to the extent she performed on-call removals, she was paid for that work. (Def.‟s Prise Dep. at 114.) On-call time spent on the telephone and traveling to the funeral home was unpaid. (Id.)
Rady, a Pennsylvania funeral director and embalmer, explained that before 2005, only work performed inside the funeral home was paid. (Def.‟s Rady Dep. at 89-90.) Despite that general rule, on one occasion Rady performed on-call work, requested compensation for that work, and was paid for the on-call services rendered. (Id. at 69.) After July 2005, Rady recorded her on-call time and could not recall an instance where she recorded her time and was not paid. (Id. at 93-94.)
An arranger, Matthew Twiss, acknowledged that, at least in one instance, his time card reflected that he was paid for recorded on-call work. (Dep. Excerpts, Tab 34 ("Def.‟s Twiss Dep.") at 178-79.) An Indiana funeral director and location manager, Raymond White ("White"), testified that he would clock in and out for on-call removals, although he believed there were hours he recorded that went uncompensated. (Dep. Excerpts, Tab 36 ("Def.‟s White Dep.") at 146-47, 165; Reply Information Sheets, Tab 14.) White recalled instances where he performed on-call work without clocking in, handwrote the time on his time cards and his supervisor signed off on the time cards. (Def.‟s White Dep. at 165-66.) White‟s supervisor advised him to record the time it took to arrive at the funeral home after receiving a telephone call, but White chose not to record that time. (Id. at 228-29.)
As a funeral director, Wilkinson lived in the funeral home in which he worked. He testified that after receiving a call regarding a removal, he would get dressed and walk downstairs, clock in, and perform the removal. (Def.‟s Wilkinson Dep. at 87, 159-60.) Wilkinson was paid at his hourly rate for that recorded on-call work. (Id. at 159-60.)
Plaintiffs allege Alderwoods maintained a corporate-wide policy requiring approval for overtime, but refused to pay for all overtime worked despite suffering or permitting overtime work. Plaintiffs cite 29 C.F.R. § 785.13 for the proposition that Alderwoods was responsible for preventing employees from performing overtime, and in many instances it failed to do so and did not properly compensate those employees. "An employer who has knowledge that an employee is working and who does not desire the work to be done, has a duty to make every effort to prevent its performance." Chao v. Gotham Registry, Inc., 514 F.3d 280, 288 (2d Cir. 2008). The Court of Appeals for the Second Circuit emphasized in Chao that "[t]his duty arises even where the employer has not requested overtime be performed or does not desire the employee to work, or where the employee fails to report his overtime hours." Id.; see Camesi v. University of Pittsburgh Med. Ctr., No. 09-85, 2009 WL 1361265, at *4 (W.D. Pa. May 14, 2009) (the law is clear that it is the employer‟s responsibility to ensure compensation for work suffered or permitted).
Plaintiffs direct the court to several memoranda and other documents for the proposition that it was Alderwoods‟ corporate-wide policy that overtime would be uncompensated if the employee did not obtain preapproval. (See Pls.‟ App., Ex. 54.)*fn9 Plaintiffs also rely upon sample plaintiffs‟ testimony to support their position that employees were affected by this corporate- wide policy and, therefore, the collective class is similarly situated for purposes of collective action certification.
For example, Lanza, a Washington funeral director and embalmer, testified that there were instances when he worked overtime without approval and did not receive any compensation. (Pls.‟ Lanza Dep. at 232.) Lanza was instructed by his supervisors at staff meetings not to clock in until his regularly scheduled workday, ...