United States District Court, Northern District of Indiana
MILLIE BRADLEY, on behalf of herself and all others similarly situated, Plaintiff,
THE ARC OF NORTHWEST INDIANA, INC., Defendant.
OPINION AND ORDER
WILLIAM C. LEE, JUDGE UNITED STATES DISTRICT COURT
This matter is before the court on a “Motion to Certify as a Collective Action”, filed by the Plaintiff, Millie Bradley (“Bradley”), on January 12, 2015. The Defendant, The Arc of Northwest Indiana (“Arc” or “Company”), filed its response on March 12, 2015, to which Bradley replied on March 26, 2015.
For the following reasons, the motion will be denied.
Bradley alleges that Arc violated certain provisions of the Fair Labor Standards Act (“FLSA”). Specifically, Bradley alleges failure to pay minimum wage under 29 U.S.C. § 206 (Count I) and failure to pay overtime wages under 29 U.S.C. § 207 (Count II), both respect to her and to other employees. Bradley further seeks to have Count II certified as an “opt-in” collective action under 29 U.S.C. § 216(b), and to prosecute Count II on behalf of herself and others similarly situated.
Bradley worked for Arc between 2009 and 2013. Clara Brown, the other affiant for this motion, worked for Arc between 1999 and 2013. Both Bradley and Brown testified that during their employment with Arc they regularly worked more than forty hours in a workweek, yet did not receive wages of at least one and one-half times their regular rate of pay for hours worked in excess of forty hours per workweek. Brown testified that in 2012 and 2013, she had to work overnight, in excess of forty hours per workweek, yet was not compensated for those hours.
Bradley testified that in addition to herself and Brown, Jackie Benson and Beata Green also complained that Arc failed to pay them at the required overtime rate. Brown also testified that Benson made these complaints. Both Bradley and Brown testified that they complained to their supervisors about their failure to receive proper wages, and both stated that Arc attempted to correct the shortcoming by crediting Bradley and Brown for the hours they worked in other pay periods when they did not work those hours. Both Bradley and Brown testified that despite this “time shifting”, Arc failed to pay them the correct amount they were owed.
Bradley states that the potential collective action is limited to hourly employees who worked for Arc at its facility at 2901 Beverly Drive, Gary, Indiana, during Bradley’s period of employment with Arc from 2009 to 2013.
Arc has provided a more detailed factual background as follows. Arc, located in Gary, Indiana, is a nonprofit entity which provides services to those individuals with intellectual and developmental disabilities. Arc currently employs approximately 184 hourly and salaried workers. Arc formerly operated a Residential Program wherein its clients would live at the residence – owned by Arc – within Lake County, Indiana. In order to properly staff this Residential Program, Arc employees would provide care to the clients within the residential home until a designated time (usually 10:00 p.m.). At the designated time, the Arc employee would then be “off-duty”, (this is commonly referred to as “sleep time”) yet remain in the residential home. If a client woke during the night and required care, then the Arc employee would attend to the client’s needs for the amount of time required to handle the situation and then return to being off-duty. If the Arc employee handled client needs during the designated sleep time, then the employee was responsible for notifying the Company of the amount of time worked and then the Company would compensate the employee for that time worked.
In order to facilitate employees notifying the Company of any hours worked, a phone and computer was placed in each residential home which employees could use to access Arc’s timekeeping system and log any hours worked during the designated “sleep time”. Bradley admitted that the residential home in which she worked had both a phone and a computer. [Arc Exhibit B: RFA Nos. 6 and 7].
Arc asserts that it paid overtime to its employees within the Residential Program when the employees notified the Company that they worked overtime. The Company provides a guide to employees on how to call in and call out using the time-keeping system. Arc paid for 36, 114.65 hours of overtime worked by employees in the Residential Program in 2012. Arc paid for 37, 851.83 hours of overtime worked by employees in the Residential Program in 2013. Arc discontinued its Residential Program on or about October 3, 2013.
Arc additionally notes that the Court provided the parties with the opportunity to conduct discovery related to conditional certification from October 16, 2014 to March 26, 2015. Bradley has not engaged in any such discovery. Arc, however, served Requests for Admission, Interrogatories and Requests for Production of Documents to Bradley on December 9, 2014. On January 8, 2015, Bradley served her responses to Requests for Admission. On February 24, 2015, Bradley served responses to Interrogatories and Requests for Production of Documents.
The FLSA allows an employee to maintain a collective action “for and on behalf of himself . . . and other employees similarly situated.” 29 U.S.C. § 216(b). Because the FLSA does not explain what it means to be “similarly situated, ” many federal courts have adopted a two-step approach to fill the gap. Allen v. The Payday Loan Store of Indiana, Inc., 2013 U.S. Dist. LEXIS 169971, at *3 (N.D. Ind. Dec. 3, 2013)(Lee, J.); Boyd, 2011 U.S. Dist. LEXIS 88656, *10. Under this approach, a plaintiff is required at the first step “to make a modest factual showing that he and the other employees to whom notice is to be sent were victims of a common policy or plan that violated the law.” Allen, 2013 U.S. Dist. LEXIS 169971, *3 (internal citations and quotations omitted). When broken down, this first step has two parts: (1) a factual showing that others want to join the action; and (2) a factual showing that a common policy or plan violates the FLSA. If the plaintiff meets that burden, the court may authorize that notice be sent to putative class members to determine whether they want to “opt in” to the action. Id. at *3-4. The second step occurs at the close of discovery. At that time, “a defendant can move to dismiss the opt-in plaintiffs in light of the record developed during discovery.” Id. at *4.
The “modest factual showing” required at the first step of the proceedings may be lenient, but it is “not a mere formality.” Allen, 2013 U.S. Dist. LEXIS 169971 (citing Biddings v. LakeCounty, No. 2:09-CV-38-PRC, 2009 U.S. Dist. LEXIS 61486, 2009 WL 2175584, ...