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Linda Holley v. Erickson Living

May 18, 2012

LINDA HOLLEY, PLAINTIFF,
v.
ERICKSON LIVING, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Eduardo C. Robreno, J.

MEMORANDUM

I. INTRODUCTION

Plaintiff Linda Holley ("Plaintiff") brings this Fair Labor Standards Act ("FLSA") action against Defendants Erickson Living and Erickson Living at Ann's Choice (collectively, "Defendants"). Plaintiff, on behalf of herself and those similarly situated, alleges that Defendants violated the FLSA by requiring employees to perform work without proper compensation before their shifts began and during their lunch breaks. To that end, Plaintiff proposes the certification of two subclasses: (1) a pre-shift work subgroup including all non-exempt persons employed by Defendants between March 30, 2008, and the present; and (2) a lunch-break work subgroup including all non-exempt persons employed by Defendants between March 30, 2008, and the present.

Currently before the Court is Plaintiff's Motion Authorizing Notice to Similarly Situated Persons. For the reasons that follow, the Court will deny Plaintiff's Motion without prejudice.

II. BACKGROUND

Defendant-Erikson Living develops and manages continuing care retirement communities. Relevant here, Defendant-Erikson Living manages the Ann's Choice and Maris Grove facilities. Ann's Choice is a senior living community located in Bucks County, Pennsylvania. Maris is a retirement community located in Glenn Mills, Pennsylvania. Combined, Ann's Choice and Maris have approximately 167 non-exempt employment positions. Plaintiff worked at Ann's Choice as a nurse from November 2007 to September 2010. Cynthia Wilcox, a putative opt-in Plaintiff, also worked at Ann's Choice as a nurse from September 2007 to April 2009.*fn1 It is undisputed that Plaintiff and Wilcox were non-exempt employees and that the alleged FLSA violations only relate to non-exempt employees.

Plaintiff's Complaint avers two of Defendants' alleged timekeeping policies violate the FLSA. First, Defendants failed to compensate Plaintiff for pre-shift work. Defendants' standard work period for non-exempt employees was a forty-hour work week, consisting of eight hours a day of paid time. All non-exempt employees had to clock in and clock out at the beginning and end for their shifts. Defendants used the "Kronos" timekeeping system to record employees' work hours. Plaintiff contends that the Kronos system at Ann's Choice only allowed employees to clock in during a seven-minute window before an employee's scheduled shift time. If an employee was late to work, the Kronos system prevented the employee from clocking in.

This resulted in two problems. One, employees arrived at work well before their scheduled shift. Two, if the employee was late, they performed work while not clocked in that resulted in under payment of wages. In particular, Plaintiff contends that when she arrived at work early Defendants required her to perform work duties before the start of her shift including, "receiving pass down instructions, collecting or checking equipment, answering phone calls, providing patient care, interacting with visitors[,] and other things." Pl.'s Br. in Supp. of Mot. for Authorizing Notice to Similarly Situated Persons 4, ECF No. 16 [hereinafter Pl.'s Br.]. Plaintiff contends that she performed about ten to twenty minutes of this pre-shift work twice a week. See Holley Decl. ¶ 8, Pl.'s Br.

Ex. A. Opt-in Plaintiff Wilcox contends that she performed about ten to twenty minutes of this pre-shift work three times a week. See Wilcox Decl. ¶ 8, Pl.'s Br. Ex. B. Plaintiff further contends that Defendants knew of this pre-shift work, but did nothing to track the instances of pre-shift work or compensate Plaintiff for such work. Finally, Plaintiff and Wilcox contend, "Through their personal observations of, and discussions with, their co-workers during the Class Period, Plaintiffs believe that other Class members were subjected to the same pre-shift work policies and practices and affected the same way by them." Pl.'s Br. 5.

Second, Defendants failed to compensate Plaintiff for meal-break work. Plaintiff contends that all Defendants' employees were governed by a common meal-break policy. This policy provided that all "[e]mployees scheduled to work a standard eight and one-half hour shift are allowed . . . one thirty minute unpaid meal break." Hours of Work and Paydays, Pl.'s Br. Ex. C. Plaintiff contends that Defendants configured the Kronos system to automatically deduct thirty minutes from an employee's daily total work hours to result in a total of eight paid hours, regardless of whether an employee worked during his meal break. Plaintiff contends that she worked during her meal break at least five times per week during the class period. Wilcox contends that she worked during her meal break about four times per week during the class period. Defendants allegedly knew about this unpaid work and did nothing to track this time.*fn2

In an effort to recoup compensation for this pre-shift and meal-break work, Plaintiff filed this suit on April 8, 2011. The Court ordered completion of discovery regarding conditional certification by October 15, 2011. See First Scheduling Order, ECF No. 11. After close of this discovery period, Plaintiff moved for conditional certification of her collective action. ECF No. 16. Therein, Plaintiff moved the Court to order notice to all non-exempt, full-time employees of Ann's Choice and Maris Grove from March 30, 2008, to the present, along with the last four digits of each employee's Social Security number.

Defendants opposed this motion. ECF No. 18. Plaintiff's Motion is now fully briefed and ripe for disposition.

III. APPLICABLE LAW

The FLSA, in pertinent part, requires employers to pay overtime wages for those hours worked more than forty hours a week at a rate of "not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207 (2006). A plaintiff seeking redress under the FLSA may maintain an action on "behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). This collective action device provides "plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources." Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 170 (1989). Moreover, collective actions benefit "[t]he judicial system . . . by efficient resolution in one proceeding of common issues of law and fact arising from the same alleged discriminatory activity." Id. Unlike a ...


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