United States District Court, S.D. Indiana, Terre Haute Division
FANNIE M. KOLISH, Plaintiff,
METAL TECHNOLOGIES, INC., Defendant. KEVIN GRAVES, Intervenor Plaintiff,
METAL TECHNOLOGIES, INC., Defendant.
Jane Magnus-Stinson, Chief Judge United States District
Fannie Kolish and Kevin Graves were employees of M
Technologies, Inc., (“M Technologies”).
Ms. Kolish initiated this litigation on behalf of herself and
a class of similarly situated individuals, claiming that M
Technologies violated the Fair Labor Standards Act
(“FLSA”) and the Indiana Wage Payment
Act (“IWPA”) when it automatically
treated short, recorded lunch breaks of twenty minutes or
less as thirty-minute, unpaid lunch breaks. [Filing No.
1.] Mr. Graves sought leave to intervene as a named
plaintiff, [Filing No. 39], and the Court granted
that request, [Filing No. 47]. Presently pending
before the Court are the following motions filed by
Plaintiffs: (1) a Motion to Certify a Combined Class Action
and FLSA Collective Action, [Filing No. 41]; (2) a
Motion for Approval of Class and Collective Action Notice,
[Filing No. 43]; and (3) a Motion for an Oral
Argument on Plaintiffs' Motion for Approval of Class and
Collective Action Notice, [Filing No. 44].
Weil v. M Technologies
case is related to Weil v. M Technologies, Inc.,
2016 WL 286396 (S.D. Ind. 2016). The plaintiffs in
Weil sought to certify several Rule 23 class action
and FLSA collective action sub-classes. Id. In
particular, the plaintiffs attempted to certify a Rule 23
sub-class and a collective action sub-class to address M
Technologies' failure to pay its employees for lunch
breaks of twenty minutes of less. Id. at *8, *15.
This Court found that the plaintiffs were not adequate class
representatives and on January 25, 2016, the Court denied
certification of the two sub-classes. Id. at
*16.The Court did, however, conditionally certify
the following sub-classes: a Rule 23 class and a collective
action class regarding an allegedly unlawful rounding policy
related to clock-in and clock-out times at the beginning and
end of the work day that uniformly shorted employees, and a
Rule 23 class action regarding the allegedly unlawful wage
deductions for uniforms. Id. at
*16-17.Because Weil is related to this
case, the Court has issued an entry to allow the parties to
use discovery materials from Weil in this case.
[Filing No. 45.]
Technologies is a manufacturing facility located in
Bloomfield, Indiana, that manufactures automobile parts for
car manufacturers, including General Motors, Ford, Chrysler,
Hyundai, and Honda. [Filing No. 54-1 at 5.] The
employees work one of the three shifts: the first shift
begins at 7:30 a.m. and ends at 3:30 p.m., the second shift
begins at 3:00 p.m. and ends at 11:30 p.m., and the third
shift begins at 11:00 p.m. and ends at 7:30 a.m. [Filing
No. 54-1 at 8.] Kirbie Conrad is the Human Resources
Manager who is responsible for administering M
Technologies' payroll. [Filing No. 42-2 at 2-3.]
She testified that from January 2012 to the present, M
Technologies has employed approximately 500 to 550 employees.
[Filing No. 54-1 at 2.] M Technologies paid its
employees based on their scheduled shift times, and
automatically deducted thirty minutes to account for their
lunch break. [Filing No. 54-1 at 9.]
Employment Handbook Policies
Conrad testified that every new employee was given a copy of
M Technologies' Employee Handbook, [Filing No.
42-11], and that she would spend 45 minutes with each
new employee going through the policies in the handbook and
require the employee to read and sign a form that stated that
the employee would adhere to the policies, [Filing No.
42-2 at 74-75]. The Employee Handbook states the
following with respect to payment of wages and timekeeping
By law, we are obligated to keep accurate records of the time
worked by employees. This is done by either time clocks or
other written documentation.
Your time punch is the only way the payroll department knows
how many hours you worked and how much to pay you. Your time
punch indicates when you arrived and when you departed. You
are to punch in and out for lunch and for brief absences like
a doctor or dentist's appointment. All employees are
required to keep Human Resources, their cell leader or Shift
Supervisor advised of their departures from and returns to
the premises during the workday.
You are responsible for your time punch. Remember to record
your time. If you forget to punch in or make an error on your
punch, a “missed punch form” must be filled out
with the Shift Supervisor or cell leader initials next to it
for approval and Human Resources must be notified. Cell
leader and Shift Supervisor time tickets require the Plant
Manager's approval. You are not permitted to punch in
more than 15 minutes before your scheduled starting time nor
more than 15 minutes after your scheduled quitting time
without the group leader or Shift Supervisor's approval.
This would be considered unapproved overtime.
No one may record hours worked on another's punch or time
slip for any reason. Tampering with yours or another's
time punch is cause for disciplinary action, including
possible immediate dismissal, of both employees. Do not alter
another person's record, or influence anyone else to
alter your record for you. In the event of an error in
recording your time, please report the matter to Human
Resources, your group leader, or your Shift Supervisor
[Filing No. 42-11 at 7.]
respect to business hours and work schedules, the Employee
Handbook states the following:
Business Hours Our regular office hours are
7:30 a.m. to 5:00 p.m., Monday through Friday. Your
particular hours of work and the scheduling of your lunch
period will be determined and assigned by your Plant Manager
or shift supervisor. Most employees are assigned to work a
40-hour workweek. You are required to take a 30-minute unpaid
lunch period daily. Please understand that you may not
“work through lunch” in order to arrive late or
to leave early or to work extra time, unless approved by the
* * *
Work Schedules & Rules The normal
workweek consists of five (5) days, eight (8) hours long,
Monday through Friday. You will be notified promptly whenever
a change is necessary. Should you have any questions
concerning your work schedule, please ask your shift
supervisor or Plant Manager.
[Filing No. 54-2 at 6-7.]
employee wished to work more than eight hours per day, the
employee was required to complete an Overtime Authorization
form in order to be paid for his or her time. [Filing No.
54-1 at 9-10.]
Rounding of Employees' Lunches
January 20, 2013 to March 20, 2016, M Technologies maintained
a system that recorded the times its employees clocked out
for lunch and clocked back in to return to work. [Filing
No. 42-2 at 49; Filing No. 42-3; Filing No.
42-4; Filing No. 42-5; Filing No.
42-7; Filing No. 42-8.] Ms. Conrad testified
that M Technologies paid employees for scheduled hours of
work, and rounded the time records in the company's favor
and to the employees' detriment. [Filing No. 42-2 at
14-15; Filing No. 42-2 at 52-53.] According to
Ms. Conrad, M Technologies applied its time rounding
practices uniformly against all of its hourly paid employees,
[Filing No. 42-2 at 40-41; Filing No. 42-2 at
64-65], and the policy punished employees for clocking
in as little as one minute late, [Filing No. 42-2 at
28; Filing No. 42-2 at 72-73]. However, M
Technologies did not take into account the employee's
recorded lunch breaks that purported to demonstrate when the
employee clocked out and back in, and instead automatically
calculated the employee's time as though the employee
took a thirty-minute, unpaid lunch break as called for by M
Technologies policy. [Filing No. 42-2 at 49-53.]
addition, Ms. Conrad testified that she would review the time
records regarding the times that employees would clock out
for lunch and clock back in to return to work, and admitted
that there were times she noticed that an employee's
lunch break was twenty minutes or less. [Filing No. 42-2
at 50.] She claimed that she would treat the
employee's time as though he or she took a thirty-minute
lunch break, despite having time clock punches that show the
lunch break was twenty minutes or less. [Filing No. 42-2
to Ms. Conrad, sometime in March 2016, M Technologies stopped
collecting data that recorded the start and end time of the
employees' lunch breaks, and the employees also stopped
recording their lunch breaks. [Filing No. 42-1 at
5.] She further testified that the company continued to
automatically deduct thirty minutes from each employee's
work day without maintaining any other time clock system to
record the duration of the lunch breaks. [Filing No. 42-1
Payroll Records of Short Lunch Breaks
counsel filed an Affidavit with a summary of time and payroll
records of 275 participating plaintiffs in Weil.
[Filing No. 42-13 at 4-7.] Plaintiffs' counsel
explained that for 275 participating plaintiffs, a total of
5, 814 breaks of one to twenty minutes were identified.
[Filing No. 42-13; Filing No. 42-16.] Out
of that number, Plaintiffs' counsel claims that the
records of 228 Rule 23 class members show that there were 4,
886 unpaid breaks of one to twenty minutes, which resulted in
unpaid wages at the regular rate of $12, 800.17. [Filing
No. 42-13.] The Affidavit also explained that for the
records of 47 FLSA opt-in plaintiffs, there were a total of
928 breaks of one to twenty minutes, which resulted in $3,
064.04 unpaid wages at the regular rate.
Kolish was an employee at M Technologies who worked as a
parts inspector on a line along with a team of four or five
other employees. [Filing No. 54-5.] She and the
employees at her line would take their lunch break around the
same time. [Filing No. 54-5 at 9.] Although her
typical lunch break was from 12:00 p.m. to 12:30 p.m., the
length of time in her recorded lunch breaks varied.
[Filing No. 54-5 at 9-10]
Kolish had twenty-four different unpaid lunch breaks that
lasted between one and twenty minutes. [Filing No. 42-1
at 8-12; Filing No. 42-4; Filing No.
42-8.] She testified that although she was not verbally
told to go back to work during her lunch break, she felt
pressured by her supervisors to return to work, which is the
reason she took short lunch breaks. [Filing No. 54-5 at
8.] The records also show that there were 88 times when
Ms. Kolish clocked out and back in for lunch in the same
minute. [Filing No. 42-1 at 8-12; Filing No.
54-5 at 11.] When asked why she clocked out and back in
during the same minute or clocked in right after clocking out
for one to a few minutes, Ms. Kolish could not recall.
[Filing No. 54-5 at 11.] Ms. Kolish was never
disciplined in any way. [Filing No. 42-10 at 4.] Ms.
Kolish's supervisor, Duane Cunningham, stated that he
never saw Ms. Kolish return early from her lunch break to
begin working, that he was under the impression that Ms.
Kolish took thirty-minute lunch breaks, and that had Ms.
Kolish notified him that she worked during her lunch break,
he would have instructed her to complete an Overtime
Authorization form. [Filing No. 54-6 at 2-3.] Ms.
Kolish testified that she expected to be paid for “a
full 40-hour paycheck” for her work each week.
[Filing No. 54-5 at 9.] She also stated that it
“never occurred to her” that she should be
getting paid for the part of her lunch that she worked.
[Filing No. 54-5 at 9.]
September 13, 2016, the Magistrate Judge presiding over this
case held a settlement conference, [Filing No. 32],
and Ms. Kolish, who was required to attend, told her attorney
that she was not able to be there because she had to attend a
funeral of a family member in Massachusetts, [Filing No.
54-7]. During her deposition, Ms. Kolish initially
stated that she left town for the funeral on September 6,
2016 and returned the night of September 13, 2016.
[Filing No. 54-5 at 3.] However, after being
confronted with Facebook posts that showed she was in Indiana
on September 9, 2016, Ms. Kolish changed her testimony and
admitted that she had returned to Indiana on September 9,
2016, but that she left her attorney with the impression that
she was still out of town. [Filing No. 54-5 at 3;
Filing No. 54-5 at 5.]
Graves was hired by M Technologies in 2011, [Filing No.
54-8 at 3], and he resigned from his job on October 27,
2013, [Filing No. 54-2 at 1]. During his time at M
Technologies, he was an inspector of four-cylinder engines at
two separate cells, one for Hyundai and one for Chrysler.
[Filing No. 54-8 at 3.] Each of those cells had two
inspectors and one cell leader. [Filing No. 54-8 at
5.] Mr. Graves' payroll records demonstrate that
from January 20, 2013 until his resignation, he had 32
different unpaid lunch breaks that lasted between one to
twenty minutes. [Filing No. 42-13; Filing No.
42-14; Filing No. 42-15.] He testified that he
would return to work early after taking his lunch break
because he wanted to get back to work. [Filing No. 54-8
at 6.] He stated that because the machines were down
during lunch, he would sweep or find something else to do
when he returned to work. [Filing No. 54-8 at 6.] He
further testified that he was not instructed by anyone from M
Technologies to return to work early and he was not aware if
anyone else was working during their lunch break. [Filing
No. 54-8 at 7.] He stated that no one else on their team
worked during their lunch break, that he understood he had to
complete a form to get paid for the time that he worked
during his lunch break, and that he never asked to be paid
for the time he spent working during his lunch break.
[Filing No. 54-8 at 6-7.] In addition, Mr.
Graves' supervisor, Mr. Cunningham, claimed that he had
no knowledge of Mr. Graves ever working during his lunch
breaks, that he believed Mr. Graves always took a
thirty-minute lunch break, and that if Mr. Graves would have
informed him that he worked during his lunch break, Mr.
Cunningham would have instructed him to fill out an Overtime
Authorization form. [Filing No. 54-6 at 2-3.]
Declarations from M Technologies Employees
Technologies obtained twenty-two declarations from employees
who testified that they took a thirty-minute lunch break
every day. [SeeFiling No. 54-3.] John Smith, one of
the declarants, testified that regardless of what his
recorded time shows, he always took a thirty-minute lunch
break every day, and does not remember ever taking a lunch
break of twenty minutes or less. [Filing No. 54-4 at
1.] He further testified that he was aware that M
Technologies automatically deducted thirty minutes for lunch
breaks, and that he knew he needed to complete a form if he
ever worked during his lunch break. [Filing No. 54-4 at
outset, the Court notes the Seventh Circuit Court of
Appeals' instruction that “employees who institute
a collective action against their employer under the terms of
the [FLSA] may at the same time litigate supplemental
state-law claims as a class action certified according to
Federal Rule of Civil Procedure 23(b)(3).” Ervin v.
OS Rest. Servs., 632 F.3d 971, 973-74 (7th Cir. 2011);
see alsoRobertson v. Steamgard, 2012 WL
1232090, *2 (N.D. Ill. 2012) (“the Seventh Circuit has
held that the FLSA is ‘amenable to state-law claims for
related relief in the same federal proceeding'”).
This Court ...