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Daaiyah Goldstein, On Her Own Behalf and For All Others Similarly v. the Children's Hospital of Philadelphia

October 24, 2012


The opinion of the court was delivered by: David R. Strawbridge United States Magistrate Judge


Presently before the Court in this cause of action under the Fair Labor Standards Act ("FLSA") , 29 U.S.C. § 201, et seq., is Plaintiff Daaiyah Goldstein's Motion for Conditional Certification and for an Order Authorizing Notice to Similarly Situated Persons Pursuant to 29 U.S.C. § 219(b) (Doc. 54) ("Pl. Mot."), the Memorandum of Law in Opposition to the Plaintiff's Motion for Conditional Certification of her Pre-Shift, Post-Shift, and Meal Break Timekeeping Claims filed by Defendant Children's Hospital of Philadelphia ("CHOP") (Doc. 58) ("Def. Opp."), and Plaintiff's Reply Memorandum in Support of Plaintiff's Motion for Conditional Certification (Doc. 59) ("Pl. Reply"). For the reasons set out below, we deny Plaintiff's motion.

Plaintiff worked as a security guard at CHOP from November 2008 to June 2009. (Goldstein Decl., Pl. Mot. Ex. G, ¶ 2.) She was designated a non-exempt employee for purposes of the FLSA and was paid on an hourly basis. She was regularly scheduled to work 40 hour per week. (Id. ¶ 3.) She alleges that CHOP violated her rights under the FLSA, including her entitlement to premium pay for work beyond 40 hours in a workweek, by obligating her to work without compensation before her shift actually began ("pre-shift work"), during her unpaid meal break ("meal break work"), and upon the completion of her shift ("post-shift work"). (Id. ¶¶ 7, 12, 17, 26, 30.) In support of her efforts to expand her suit into a collective action against CHOP, she has also asserted that CHOP had common policies and practices in place at the time of her employment that brought about the FLSA violations that she allegedly suffered and that also caused other similarly-situated, hourly-rate employees to suffer the same harm. (Id. ¶¶ 5, 13-15, 20, 22, 24, 31.) She seeks the certification of a class that would include all Pennsylvania residents that CHOP employed on an hourly basis at any time during the period of December 20, 2007 to the present. (Pl. Mot., Prop. Order; Second Am. Compl. ¶ 8.) The issue presented by Plaintiff's motion for conditional certification as to these three aspects of allegedly uncaptured time worked by CHOP employees is whether she has met the requisite showing that other non-exempt employees suffered from FLSA violations in a similar manner, that is, in working but not being paid for pre-shift work, meal break work, and/or post-shift work.*fn1


The penalties provision of the FLSA provides in part that:

Any employer who violates [the minimum wage or maximum hours provisions] of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. *** An action to recover [such] liability . . . may be maintained against any employer . . . in any . . . court of competent jurisdiction 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). By virtue of a 1947 amendment of the statute, an "opt-in" process was developed for maintenance of collective actions under the FLSA, providing that "[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought." Id.*fn2

Courts typically utilize a two-tiered approach to the handling of this "opt-in" process. Initially, a plaintiff must demonstrate a "modest factual showing" that there is a "nexus between the manner in which the employer's alleged policy affected her and the manner in which it affected other employees." Symczyk v. Genesis HealthCare Corp., 656 F.3d 189, 193 (3d Cir. 2011).*fn3 If this "modest factual showing" standard is met, notice to potential class members will be permitted and the parties would then engage in further discovery to determine whether the various opt-ins who might appear are, in fact, similarly situated to the named plaintiff. If the heavier burden at this stage is met, the matter may then proceed to trial as a collective action. See id.


In support of her obligation to make the "modest factual showing" that she is similarly-situated to any or all of the various classifications of non-exempt employees of CHOP working in Pennsylvania during the period at issue, Goldstein has filed a declaration in which she recounts the circumstances in which CHOP allegedly obligated her to undertake work functions before her shift began, during her 30-minute unpaid meal break, and after her shift ended. Specifically with respect to pre-shift and post-shift work, she declared that her supervisors regularly required her to do things such as pass down or receive notifications, receive orders, complete logs or reports and check out or return equipment. (Goldstein Decl., Pl. Mot. Ex. G. ¶¶ 7, 25.) With respect to the meal break work, she pointed out that the timekeeping system utilized during the period of her employment would automatically deduct 30 minutes from her daily total hours worked, that she had to work "about 60% of her unpaid meal breaks without compensation," and that the process CHOP utilized for her to request payment for missed meal breaks "often failed," since approval to work during the break was required in advance and the supervisors who could authorize this work "were not usually available." (Id. ¶¶ 15-21.)

Applicable policies

Both parties identified certain relevant policies and practices in their papers. Goldstein points out that the "Hours of Work" policy provides that all non-exempt employees are required to "swipe in and out" at the beginning and end of each work day and are scheduled to work a minimum of 40 hours per week but that they are entitled to a one-half hour uninterrupted meal break of 30 minutes if they work a minimum of five hours in a single day. (Pl. Mot. at 3-4.) Goldstein also points out that CHOP's "Standard Pay Practices" policy requires that all overtime work and hours should be approved in advance by appropriate supervisors and should be avoided unless required to maintain patient care or efficient operations. (Pl. Mot. at 4-5.)

CHOP notes that the policy also provides that "work performed before scheduled starting time, through all or part of lunch, or overtime worked without advanced approval (with or without management's knowledge) is considered hours worked and is included in calculating an employee's entitlement to overtime compensation." (Def. Opp., Ex. 15 at pp. CHOP 00746-00747.) CHOP also notes that, pursuant to its "Compensation Program," it pays employees for all time worked, regardless of whether the time was properly authorized and that it addresses unauthorized work (including unauthorized overtime work) by employees through its discipline protocols. (Id.) CHOP also insists that its timekeeping system keeps track of time worked from the time that the employee swipes in at the beginning of her work day until the point where she swipes out at the end of the workday and, with respect to the meal break, that the employee's timekeeper and/or the employee "is expected to cancel the entire 30-minute meal break deduction in the electronic timekeeping system" when the employee is called upon to work during any part of that time, "which results in the employee being compensated for the entire 30-minute period." (Def. Opp., Ex. 13 at p. CHOP 00778.)

Plaintiff's evidentiary proffer

In her declaration, Plaintiff ...

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