Reeb v. Alro Steel Corp.

DENNIS REEB, Plaintiff, v. ALRO STEEL CORPORATION, Defendant.

No. 2:21-cv-12545

United States District Court, E.D. Michigan, Southern Division

April 15, 2022

OPINION AND ORDER GRANTING MOTION FOR CONDITIONAL CERTIFICATION [15]

STEPHEN J. MURPHY, III United States District Judge.

Plaintiff Dennis Reeb filed the present putative collective action against Defendant Alro Steel under the Fair Labor Standards Act (“FLSA”) and the New York Labor Law. Shortly after Plaintiff filed an amended complaint, ECF 10, he moved for conditional certification under 29 U.S.C. § 216(b) of the FLSA, ECF 15. The parties briefed the motion. ECF 18; 19.^[1] For the reasons below, the Court will grant the motion for conditional certification.

BACKGROUND

Plaintiff was a former warehouse employee for Defendant at its Tonawanda, New York location. ECF 15, PgID 114-15. As a warehouse employee, Plaintiff worked forty hours a week id. at 115, and earned hourly wages, ECF 10, PgID 48; ECF 15-5, PgID 157. Plaintiff alleged that during his employment he and other warehouse employees nationwide had to work unpaid compensable time, in violation of the FLSA. ECF 10, PgID 50-55. According to Plaintiff, warehouse employees were required “to arrive [fifteen] minutes before their shifts every day.” ECF 15, PgID 117. The fifteen-minute buffer was known as “Alro Time.” Id.

Plaintiff further alleged that Defendant “round[ed] its warehouse employees' time only in its favor.” Id. at 119. And last, Plaintiff noted that “all warehouse employees [were required to] wear hard hats, safety shoes . [, ] and safety glasses.” Id. at 120. But Plaintiff alleged that warehouse employees were not paid for the time between gearing up and waiting for their shifts to begin, and the time between the end of their shifts and before removing their gear. Id. Plaintiff called those periods “post-donning and pre-doffing time.” Id.

Plaintiff ultimately sued Defendant “for overtime damages and penalties under the FLSA . . . on behalf of himself” and a putative collective. ECF 10, PgID 54. He defined the collective as “[a]ll current and former individuals employed by [Defendant] as warehouse employees within the three-year period immediately preceding the filing of this action.” Id.; ECF 15, PgID 121.

LEGAL STANDARD

Under the FLSA, employees may collectively sue their employers to recover unpaid wages. 29 U.S.C. § 216(b). “Section 216(b) establishes two requirements for a representative action: (1) the plaintiffs must actually be ‘similarly situated,' and (2) all plaintiffs must signal in writing their affirmative consent to participate in the action.” Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006) (quoting § 216(b) and citing Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 167-68 (1989)). An FLSA collective action “is distinguished from the opt-out approach utilized in class actions under” Federal Rule of Civil Procedure 23 because potential collective plaintiffs must “opt into the suit.” Id. (internal quotation marks removed).

“Courts within the Sixth Circuit generally apply a two-step procedure for determining whether an FLSA case should proceed as a collective action.” Knecht v. C & W Fac. Servs., Inc., 534 F.Supp.3d 870, 873 (S.D. Ohio 2021) (citation omitted). At step one, “certification is conditional ‘and by no means final.'” King v. Nat'l Pro. Staffing, LLC, No. 20-10400, 2021 WL 5883233, at *4 (E.D. Mich. Dec. 13, 2021) (quoting Comer, 454 F.3d at 546). At step two, “following discovery, ” the Court “examine[s] more closely the question of whether particular members of the class are, in fact, similarly situated.” Comer, 454 F.3d at 547. The Court “employs a stricter standard” at the second stage because it “has much more information on which to base its decision.” Id. (quotation omitted).

Plaintiff bears the burden, at the first step, to “show[] that the employees in the proposed class are ‘similarly situated.'” Knecht, 534 F.Supp.3d at 873 (quotation omitted). Employees in a proposed collective are similarly situated when evidence shows that Plaintiff “and potential opt-in plaintiffs suffer from a single, FLSA-violating policy[] and . . . that their claims are unified by common theories of defendant's statutory violations.” Loomis v. Unum Grp. Corp., 539 F.Supp.3d 898, 906-07 (E.D. Tenn. 2021) (cleaned up). Plaintiff satisfies his burden “even if the proofs of these theories are inevitably individualized and distinct.” Id. at 907 (quotation omitted). At bottom, the showing at step one is only “a modest factual showing, ” and the Court must employ a “fairly lenient” standard that “typically results in conditional certification of a representative class.” Comer, 454 F.3d at 547 (cleaned up).

DISCUSSION

The Court will first determine whether Plaintiff has met his “modest burden of showing that [he] is similarly situated” to the individuals of the proposed collective such that conditional certification is proper. King 2021 WL 5883233, at *5. After, the Court will address Plaintiff's proposed notice and opt-in form.

I. Conditional Certification

The Court will first detail the evidence offered by each party. After, the Court will examine the evidence under the “fairly lenient” standard to assess whether the proposed collective is similarly situated to Plaintiff.

A. Plaintiff's Evidence

Plaintiff offered three declarations and a deposition transcript from individuals who were employed by Defendant as well as Defendant's discovery responses from a related, out-of-circuit case, Amandah v. Alro Steel Corp., Case No. 19-cv-1607 (E.D. Wis. Nov. 1, 2019). ECF 15-2; 15-6; 15-7; 15-8; 15-9. “To warrant a finding that similarly situated employees exist, a plaintiff's declaration must at least allege facts sufficient to support an inference that [he] has actual knowledge about other employees' job duties, hours worked, and whether they were paid for overtime hours.” Holder v. A&L Home Care & Training Ctr., LLC, 552 F.Supp.3d 731, 739 (S.D. Ohio 2021) (cleaned up).

First, Plaintiff offered his own declaration. ECF 15-2. He stated that “[a]t the beginning of every scheduled shift, all warehouse employees, including [him], attended a shift meeting.” Id. at 142. Because of the meeting, the employees “were expected to arrive on [Defendant's] premises [fifteen] minutes before [their] scheduled shift start times.” Id. The expectation was allegedly known as “Alro Time.” Id. During the fifteen-minute buffer, Plaintiff explained that he would “put on [his] personal protective equipment (“PPE”), including boots with steel-toe attachments, hard hat, goggles[, ] and warehouse uniform.” Id. He would then “wait[] in the break room with [his] co-workers or walk[] to the warehouse floor to wait for the daily pre-shift meeting.” Id. at 143. Plaintiff noted that he was “never paid for any time before [his] scheduled shift time, ” he “could never leave work earl[y], ” and he “was never compensated for pre-doffing time” after his shift ended. Id. Thus, his hours and pay “never ‘evened out' over time.” Id.

Plaintiff also offered two declarations from former employees of Defendant's Wisconsin warehouse. ECF 15-7; 15-8. Both former employees shared similar experiences to Plaintiff's with “Alro Time.” ECF 15-2, PgID 142. For the Wisconsin employees, “Alro Time” was also “an instruction or directive from [Defendant's] management that employees . . . had to arrive each day at least fifteen minutes before [their] scheduled shift start time.” ECF 15-8, PgID 278; see 15-7, PgID 276 (“‘Alro Time' meant arriving ‘fifteen [] minutes early' to all scheduled activities . . . including our scheduled shift start times, pre-shift meetings, and any [company] meetings that were held ‘off-site.'”). What is more, both Wisconsin employees explained that they would “clock[] in” before their scheduled shift times, don their uniforms and PPE, and then “wait[] for [the] ‘pre-shift' meetings to begin.” ECF 15-7, PgID 277; ECF 15-8, PgID 279. And like Plaintiff, the employees were not paid for the buffer time. ECF 15-7, PgID 277 (“I understood that ‘Alro Time' literally meant ‘Alro's Time,' as in no employees, including myself, were paid for it.”); ECF 15-8, PgID 279; see ECF 15-2, PgID 142-43.

Last, Plaintiff offered testimony from an “educational manager” at Defendant's headquarters in Michigan. ECF 15-6, PgID 220-21; see ECF 10, PgID 48 (“Defendant Alro is . . . headquartered in Jackson, Michigan.”). An educational manager “assist[s] with [] training documents” by “revisiting older versions and updating them and developing new training.” ECF 15-6, PgID 220. The training documents include an “onboarding manual”; Defendant trains all warehouse employees “under the same [onboarding] manual.” Id. at 221.

The Educational Manager explained that “Defendant has an employee handbook for all [seventy] of its locations, ” and that “the employee handbook sets forth the expectations for all of [Defendant's] warehouse employees.” Id. at 226; see also ECF 15, PgID 119. She also confirmed that if someone were to “ask[] an employee of [Defendant] what Alro time was . . they would probably know what it meant.” ECF 15-6, PgID 235-36; 248-50. Indeed, even the Educational Manager “observe[d] Alro time, ” because it was “part of the custom at [the company] to observe Alro Time . . . [i]n certain situations.” Id. at 236-37. And Defendant echoed the understanding in its tenth interrogatory response to the question, “What is Alro Time?”. ECF 15-9, PgID 286 (“Alro Time” includes the “expectation [] that you will arrive [fifteen] minutes early” “if you have a meeting or work off site.”). Last, the Educational Manager noted that she was unaware of any facility that does not “have a daily shift...