Laughlin v. Jim Fischer, Inc., Case No. 16-C-1342

JOSHUA LAUGHLIN, et al., Plaintiffs, v. JIM FISCHER, INC., Defendant.

Case No. 16-C-1342

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

June 4, 2018

DECISION AND ORDER

Plaintiffs Joshua Laughlin and Greg Scotto, Jr., (the "Named Plaintiffs") brought this wage-and-hour collective and putative class action against their former employer, Defendant Jim Fischer, Inc., on their own behalf and on behalf of other similarly situated hourly jobsite employees. They allege that Defendant violated the jobsite employees' rights to regular and overtime pay under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq., and Wisconsin's wage law, Wis. Stat. § 109.01, et seq. Specifically, they allege that Defendant failed to treat their travel time to and from jobsites as hours worked for which they were owed compensation, failed to account for 401(k) contributions on prevailing wage jobs when determining the regular rate of pay for overtime purposes, erroneously payed daily overtime instead of weekly overtime on prevailing wage jobs, and incorrectly payed weekly overtime at the end of the workweek based on the final job worked rather than the average weekly regular rate. The court has jurisdiction over the FLSA claims pursuant to 28 U.S.C. § 1331 and over the state law claims pursuant to 28 U.S.C. § 1367.

Previously, the court granted the Named Plaintiffs' motion for conditional certification of a collective FLSA class under 29 U.S.C. § 216(b). ECF No. 39. This matter comes before the court on the Named Plaintiffs' motion for certification of their state law claims under Federal Rule of Civil Procedure 23 (ECF No. 50) and Defendant's motion to decertify the conditional FLSA collective class (ECF No. 66). For the reasons stated below, the Named Plaintiffs' motion to certify a Rule 23 class will be granted, and Defendant's motion to decertify the conditional FLSA collective class will be denied.

BACKGROUND

Defendant is a concrete contractor that does business throughout northeastern Wisconsin. ECF No. 30 ¶¶ 2-3. The Named Plaintiffs are hourly jobsite employees formerly employed by Defendant, and they bring both their FLSA and Wisconsin law claims on behalf of similarly situated hourly jobsite employees. This court's earlier order conditionally certifying a collective action on the FLSA claims permitted the mailing of notice to a class consisting of "[a]ll persons who are or were employed by Jim Fischer, Inc. as hourly jobsite employees during the time period on or after October 6, 2013." ECF No. 39 at 15. The court concluded that the Named Plaintiffs made an adequate initial showing that they were similarly situated to the conditional class members with regard to claims for travel time pay, overtime computation on prevailing wage jobs for which they received 401(k) contributions, and Defendant's daily overtime policies. Id. at 4. Eight individuals have filed a notice of consent to opt in as plaintiffs in the FLSA action, bringing the size of the conditional class to ten members, including both Named Plaintiffs. ECF Nos. 40-47. As will be discussed below, however, Defendant disputes this number as part of its motion for decertification of the conditional FLSA class. ECF No. 67 at 4.

In addition to opposing Defendant's motion to decertify the FLSA conditional class, the Named Plaintiffs have filed a motion to certify a Rule 23 class consisting of similar jobsite employees.The Named Plaintiffs define the proposed Rule 23 class as follows: "All hourly employees of Jim Fischer Inc., who performed work for Jim Fischer Inc. on a jobsite on or after October 6, 2014, excluding owners." ECF No. 50. The Named Plaintiffs assert that the class consists of at least 40 hourly jobsite employees employed by Defendant between October 6, 2014, and the end of 2016. Pl.'s Br., ECF No. 51 at 9-11.

ANALYSIS

I. Motion to Certify State Law Claims

The class action is "an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only." Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979). To obtain certification, the "proposed class must satisfy the requirements of Rule 23(a), as well as one of the three alternatives in Rule 23(b)." Messner v. Northshore Univ. HealthSystems, 669 F.3d 802, 811 (7th Cir. 2012) (citing Siegel v. Shell Oil Co., 612 F.3d 932, 935 (7th Cir. 2010)). Rule 23(a) serves as a gatekeeper to ensure that a class format is an appropriate procedure for adjudicating a particular claim. Bell v. PNC Bank Nat'l Ass'n, 800 F.3d 360, 373 (7th Cir. 2015). Accordingly, Rule 23(a) imposes four requirements: numerosity, commonality, typicality, and adequacy of representation. Fed. R. Civ. P. 23(a). As noted, a proposed class must meet one of the requirements of Rule 23(b) in addition to the four requirements in Rule 23(a). The Named Plaintiffs seek certification under Rule 23(b)(3). That rule allows for certification of classes seeking monetary damages when "questions of law or fact common to the class members predominate over any questions affecting individual members" and when the "class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3).

In conducting the Rule 23 analysis, the court should not turn the class certification proceedings into a dress rehearsal for trial on the merits of the case. See, e.g., Schleicher v. Wendt, 618 F.3d 679, 685 (7th Cir. 2010). Nevertheless, "a court may not simply assume the truth of the matters as asserted by the plaintiff." Messner, 669 F.3d at 811. Rather, "[a] party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). "If there are material factual disputes, the court must 'receive evidence . . . and resolve the disputes before deciding whether to certify the class.'" Messner, 669 F.3d at 811 (citing Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 676 (7th Cir. 2001)). The Named Plaintiffs bear the burden of showing that a proposed class meets the Rule 23 requirements by a preponderance of the evidence. Id.

Although the Named Plaintiffs' brief in support of their certification motion addresses all four Rule 23(a) requirements as well as the Rule 23(b)(3) requirements, Defendant's brief develops only two arguments in opposition to certification. First, Defendant contends that the Named Plaintiffs fail to establish commonality, as required by Rule 23(a). Second, Defendant argues that a class action is not the superior mechanism for resolving the Named Plaintiffs' state law claims, as required by Rule 23(b)(3). The court will address Defendant's arguments at each of the relevant steps in the analysis.

A. Numerosity

Considering first the numerosity requirement, under Rule 23(a)(1) the plaintiff must show that "the class is so numerous that joinder of all members is impractical." The Seventh Circuit has recognized that a class consisting of as few as forty members could satisfy the numerosityrequirement. Pruitt v. City of Chicago, 472 F.3d 925, 926-27 (7th Cir. 2006). The Named Plaintiffs assert that the challenged travel time and overtime policies applied to all of Defendant's hourly employees, and they identify exactly 40 different non-owner employees who worked on projects and received hourly wages from Defendant between October 2014 and the end of 2016. Pl.'s Br., ECF No. 51 at 2-3 (citing ECF Nos. 52-1, 52-2, 52-3, 52-4). Because Defendant does not oppose certification on numerosity grounds, the court concludes that the class of at least 40 members identified by the Named Plaintiffs satisfies Rule 23(a)(1)'s numerosity requirement.

B. Commonality

Turning to Rule 23(a)(2)'s "commonality" requirement, a plaintiff seeking class certification must next show that "there are questions of law or fact common to the class." The Supreme Court has interpreted the commonality requirement to mean that the claims of the proposed class must depend on a common contention that is "of such a nature that it is capable of classwide resolution—which means that the determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Wal-Mart, 564 U.S. at 350. "What matters to class certification . . . is not the raising of common 'questions'—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers." Id. (alteration in original) (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)). "[A] court need only find a single common question of law or fact . . . ." Chicago Teachers Union, Local No. 1 v. Bd. of Educ. of City of Chi., 797 F.3d 426, 434 (7th Cir. 2015) (citing Wal-Mart, 564 U.S. at 359).

The Named Plaintiffs assert that each of their claims raise questions of fact or law that are common to the whole class. With regard to travel time in particular, the Named Plaintiffs argue that their claims raise two common questions: (1) whether Defendant had a uniform, unofficial policy requiring employees to report to the shop to receive their jobsite assignments and (2) whether filling out time cards at the shop after working at a jobsite constitutes a principal activity. Pl.'s Br., ECF No. 51 at 12. Answering those questions would resolve whether travel to and from the jobsite, respectively, was compensable, the Named Plaintiffs argue. Defendant challenges the commonality of this aspect of the Named Plaintiffs' claim, however, insisting that this question is best resolved on an individual basis. Def.'s Br., ECF No. 55 at 6. Defendant reiterates that, as a...