United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. RICHARD WEBBER, Senior District Judge.
This matter comes before the Court on Plaintiffs Johnnie Benton's and Sean Marre's ("Plaintiffs") "Motion for Class Certification" [ECF No. 16].
On March 3, 2014, Plaintiffs, individually, and as representatives of a class of similarly situated persons, filed a First Amended Petition in the Circuit Court of the County of St. Louis, alleging Defendant Labels Direct, Inc., ("Labels Direct") violated the Missouri Minimum Wage Law ("MMWL"), Missouri Revised Statutes §§ 290.500, et seq. [ECF No. 11]. On July 22, 2014, Defendant Labels Direct, Inc. ("Labels Direct') filed a Notice of Removal, on grounds of federal question jurisdiction, because Plaintiffs' unruled state "Motion for Class Certification" [ECF No. 16] alleged they and the purported class had been harmed by Labels Direct's violation of 29 C.F.R. § 785.18 [ECF Nos. 1, 7, 16, 16-1]. Thus, Labels Direct asserted this Court has original jurisdiction over this matter because it arises under the federal Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq.
After the Court directed Labels Direct to respond to Plaintiffs' Motion for Class Certification, Labels Direct filed its Response [ECF Nos. 18, 30, 30-1]. On July 28, this Court entered a Docket Text Order that, among other things, granted Plaintiffs leave to add two more individuals, Ryan Piel and Adam English, as plaintiffs in this matter [ECF No. 17]. The Court granted Plaintiffs leave to file their Fourth Amended Complaint, and to add Labels Direct's President Christopher Budde ("Budde"), and Vice-President Kimberly Chaney ("Chaney"), as defendants on August 8, 2014 [ECF Nos. 28, 31, 33]. Plaintiffs filed "Plaintiffs' Reply to Defendant's Memorandum in Opposition to Plaintiffs' Motion for Class Certification" on August 13, 2014 [ECF No. 35].
In addition to its MMWL claims, Plaintiffs' Fourth Amended Complaint ("FAC") specifically asserts claims under the FLSA, alleging two categories of overtime violations: 1) failure to pay for 15-minute rest periods taken twice each day; and 2) failure to pay wages for time worked after the scheduled end of a shift, and for time spent attending meetings [ECF No. 33]. Plaintiffs' FAC requests compensatory and liquidated damages, interest for unpaid overtime wages, attorneys' fees and costs, and injunctive relief. Labels Direct, Chaney, and Budde filed their separate Answers to Plaintiffs' FAC on August 22, 2014 [ECF Nos. 38, 39, 40].
In their Motion for Class Certification, Plaintiffs ask the Court to certify this matter as a class action on behalf of each member of the class, designate one or more plaintiffs as Class Representative, appoint their counsel as Class Counsel, and for such other orders as may be just and proper [ECF No. 16]. Plaintiffs state the only claim at issue, for purposes of this class certification motion, is Plaintiffs' claim they worked nine-hour shifts at the Labels Direct factory, but were paid for only eight of those hours [ECF No. 16-1 at 1]. Plaintiffs define the purposed class as "all persons of the same grade and class as Plaintiffs Johnnie Benton, Sean Marre, Ryan Piel and/or Adam English who, during the years prior to the filing of this action, through the day of certification, worked more than forty hours a week for Defendant Labels Direct, Inc. but did not receive overtime pay at a rate equal to or in excess of one and one-half times the regular rate; or such other class or subclass as may be indicated" [ECF Nos. 33 at 15, 16-1 at 9].
Plaintiffs have submitted no affidavits, declarations, or exhibits in support of their Complaint or Motion for Class Certification. According to Plaintiffs' allegations, prior to March 2009, non-exempt hourly production workers, such as themselves, took a 1-hour lunch break in the middle of a nine-hour workday. In March 2009, a number of employees, including Plaintiff Sean Marre, requested a change in this practice, so that they could have a 15-minute break in the morning before lunch, and another 15-minute break in the afternoon after lunch, with a 30-minute lunch break. This request was granted by Labels Direct, and from January 2010 through the date of the filing of this suit, production workers like Plaintiffs, were allowed an uncompensated 30-minute lunch break, and two 15-minute breaks, also uncompensated. Plaintiffs and other similarly situated manufacturing workers were required to clock in at the beginning of each 9-hour shift, clock out at the beginning of each break and each lunch break, clock in at the end of each break, and clock out at the conclusion of their 9-hour shift. Shortly after this action was filed in January 2014, Labels Direct eliminated the 15-minute breaks, and returned to the former policy of one 1-hour lunch break. Plaintiffs state their Motion to Certify raises only a claim relating to the two 15-minute morning and afternoon breaks.
In "Defendant's Memorandum in Opposition to Plaintiffs' Motion for Class Certification, " Labels Direct asserts Plaintiffs have failed to meet their burdens for class certification under both the federal and the Missouri rules of civil procedure, as the defined class cannot satisfy the rules' numerosity, adequacy of representation, predominance and superiority requirements [ECF No. 30-1]. Labels Direct further asserts Plaintiffs seek class certification for an action alleging FLSA and MMWL wage and hour violations for time spent doing no work, and it contends "Missouri courts have yet to consider whether break periods are compensable under Missouri law."
In support of its Memorandum in Opposition, Labels Direct has submitted "Declaration of Kimberly Chaney" [ECF No. 30-1 at 23-27]. According to Chaney, Labels Direct currently employs about 13 individuals at its facility in Chesterfield, Missouri. She states that since January 2012, Labels Direct has employed a total of 18 warehouse and manufacturing employees at its Chesterfield facility, and of these 18 employees, only 8 are currently employed by Labels Direct. Chaney further states Labels Direct does not require, expect, or allow any employees to perform work outside their scheduled shifts or during their breaks, and when hourly employees take scheduled breaks or leave Labels Direct's premises for personal reasons, such as medical appointments, they must "clock in and out" using an Ingersoll Rand time clock. Chaney declares declares that prior to 2010, warehouse and manufacturing employees were permitted one 1-hour break per day, but, after several employees expressed a preference for multiple meal breaks, Labels Direct instituted a policy that provide warehouse and manufacturing employees one 15-15-minute break in the morning, a 30-minute break in the middle of their shift, and one 15-15-minute break in the afternoon. Generally, these employees were allowed to take their breaks whenever they desired; their time and attention during the breaks was devoted to non-work-non-work-related activities for their benefit and not Labels Direct's; they could leave the premises during breaks; and they were not required or allowed to perform and duties while on break.
According to Chaney, breaks were rarely interrupted; but if an employee's break was interrupted, or otherwise cut short, the employee clocked back in prior to performing any work, and was properly compensated to any time worked. She states these employees generally were paid for eight hours of work per day, even if they took longer breaks than permitted, clocked in late for work, or clocked out before the end of their shift. Chaney declares most warehouse and manufacturing employees clocked less than 40 hours per week, but, if an employee worked five days in any given week and clocked approximately 40 hours, Labels Direct paid them for their scheduled 40 hours of work. She further declares no employee ever complained to her about the three breaks being off-the-clock, but when Labels Direct amended the break time policy in February 2014 to provide for one 45-minute break per day, many employees expressed their dissatisfaction, because they preferred the three breaks per day.
In its Memorandum, Labels Direct states that, since January 2012, the break policy at issue applied only to 18 hourly, non-exempt warehouse and manufacturing employees, and Labels Direct claims Plaintiffs seek to represent current and former employees outside this classification, who were subject to different pay and break-time policies, and asserts Plaintiffs are not adequate representatives of employees outside the warehouse and manufacturing department. Labels Direct contends "the highly individualized inquiries that will be required in order to establish liability, defenses, and any damages make Plaintiffs' request for class-wide relief inappropriate" [ECF No. 30-1 at 2]. According to Labels Direct, employees could take their break when they wanted, left their work stations over their breaks, and were responsible for clocking the time spent on scheduled breaks. However, ...