United States District Court, W.D. Missouri, Western Division
July 21, 2015
AMANDA DAVIS, Plaintiff,
THE BOARD OF TRUSTEES OF NORTH KANSAS CITY HOSPITAL, Defendant.
ORDER GRANTING MOTION FOR CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION
ORTRIE D. SMITH, Senior District Judge.
Plaintiff's suit alleges she and other similarly situated employees were not paid overtime as required by the Fair Labor Standards Act ("FLSA"). More specifically, the suit alleges Defendant's policy of rounding the time an employee clocks in to the nearest quarter hour combined with Defendant's policy regarding discipline for employees who clocked in late in a manner that causes employees to work more than forty hours a week, but no overtime is paid.
She now seeks conditional certification of a collective action pursuant to 29 U.S.C. § 216(b), which would allow other employees and former employees to opt into this suit and have their similar claims litigated together. Little analysis is required because Defendant agrees to conditional certification. Accordingly, the motion (Doc. # 60) is granted, and the Court conditionally certifies a collective action on behalf of all current and formerly hourly, non-exempt personnel who performed work in the Nursing, Radiology, Respiratory Therapy, Case Management and Operations Departments in the past three years and thirty days.
The only issues in dispute relate to the manner and the content of the notice. Matters related to communication with members of the collective action, including the method and content of such communications, are generally left to the trial court's discretion. Hoffmannn-La Roche Inc. v. Sperling, 493 U.S. 165, 170-73 (1989). The parties have marshalled many cases favoring their respective positions, but none of them are binding. Few of them are even helpful because most depend on the particulars of the case at hand; what is appropriate in one case is not necessarily appropriate in another, and the benefits of exploring the particulars of each and every factual scenario represented by the many cases cited by the parties will not provide much illumination. Both sides also present cases where district judges have analyzed particular words and phrases, but knowing that one judge preferred one word or phrase while a different judge preferred another does not add a lot to the parties' arguments. Instead, the Court elects to simply resolve the parties' points of disagreement in the manner the Court believes is appropriate given the particulars of this case.
The first area of disagreement relates to the manner of distributing the notice. The Court is of the view that the notice procedure is intended to alert as many affected employees and former employees as possible about the existence of this suit and their rights related to it. With that in mind, the Court approves Plaintiff's plan to deliver notice via first class mail to all potential class members, and directs Defendant to provide the information necessary to accomplish this task. The Court also approves Plaintiff's plan to provide a reminder via e-mail thirty days before the end of the opt-in period. The Court does not agree that a reminder is coercive or otherwise suggests the Court's approval of the suit; having concluded there is no harm in issuing a reminder, the Court discerns no reason to wait to evaluate the effectiveness of the initial notice. The reminder shall be disseminated by e-mail. Reminders will be sent to current employees through their work e-mail address and to former employees at their personal e-mail address. The Court rejects Defendant's objections to the use of employees' work e-mail address; the Court does not believe sending the notice through the e-mail will disrupt patient care or that employees will spend inordinate amount of time talking about the lawsuit simply because the reminder is sent via e-mail. Certainly, this risk exists, but it exists because the suit exists. After all, it is intended that all employees learn of the suit. Some may learn of it from the initial notice mailed to them; others may learn of it from the notices posted in the workplace (as discussed below). The fact that some may learn of it through an e-mail received at work will not increase the risk of disruption.
The notice will be posted in the workplace. The parties agree that it should be posted in the break rooms in the five departments affected by this suit. The Court agrees that in light of the other methods of notice (including the reminder) there is no need to post the notice in the lunch room, at time clocks or near where Defendant posts job openings.
With respect to the notice's content, the Court deems it expedient to simply amend the notice to reflect the Court's resolution of the parties' arguments regarding wording, typeface and font size. The notice approved by the Court is attached as an Exhibit to this Order. The parties are advised the Court has made several changes that were not sought by other party in order to make the Notice more understandable to the recipients.
The parties will have to insert the appropriate information in the highlighted blanks. They are also free to adjust line spacing as needed to keep paragraphs together and to make any other changes to which they agree.
A few specific issues regarding content need to be addressed. First, Plaintiff's proposal describes the suit as one seeking both straight time and overtime. Defendant opposes this language, arguing that the FLSA does not permit recovery of straight time. The Court deems this to be an issue related to the merits, which means it is not an issue to be resolved at this juncture. Even if Defendant is correct, the issue should be resolved on behalf of the class as a whole. Second, Defendant believes the Notice should supply recipients with contact information for a representative of Defendant. Defendant seems to anticipate Plaintiff would object to having counsel serve as that contact person and suggests that two individuals from the Human Relations Department be identified as contacts. However, Plaintiff "consent[s] to providing the name of Defendant's Counsel, John Vering." Doc. # 69 at 7. Thus, Plaintiff not only agrees that a provision for contacting Defendant's representative is appropriate, but also agrees to Defendant's apparent first preference as to who the representative should be. There is not really anything for the Court to decide; by apparent agreement of the parties, a section should be added that provides Defendant's counsel's contact information.
IT IS SO ORDERED.
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI
If you have been a nonexempt (hourly) employee of North Kansas City Hospital in the nursing, radiology, respiratory therapy, case management or plant operations departments between __________, a lawsuit may affect your rights.
A Court authorized this notice. This is not a solicitation from a lawyer. The Court neither encourages nor discourages your participation in the lawsuit
A suit has been filed against The Board of Trustees of North Kansas City Hospital (referred to in this notice as "NKCH") claiming NKCH failed to properly pay overtime to certain hourly employees.
The Court has allowed the lawsuit to be conditionally certified as a collective action on behalf of employees in the nursing, radiology, respiratory therapy, case management, and plant operations departments who were affected by NKCH's attendance and time rounding policies
The Court has not decided whether NKCH did anything wrong. There is no money available now, and no guarantee there will be. However, your legal rights are affected, and you have a choice to make now.
Your options are explained in this notice. If you do not join, you risk losing any potential recovery.
YOUR LEGAL RIGHTS AND OPTIONS IN THIS LAWSUIT Join in this lawsuit. Await the outcome. Give up right to sue separately. ASK TO BE INCLUDED By joining, you keep the possibility of getting money or benefits that may come from a trial or a settlement. But, you give up any rights to sue NKCH separately about the same legal claims in this lawsuit. Do nothing. Get no benefits from it. Keep right to sue separately. DO NOTHING If you do nothing and money or benefits are later awarded, you won't share in those. But, you keep any rights to sue NKCH separately about the same legal claims in this lawsuit.
IF YOU CHOOSE TO PARTICIPATE YOU MUST RETURN THE CONSENT TO JOIN IN AN ENVELOPE POSTMARKED NO LATER THAN insert date
1. Why did I get this notice?
NKCH records show that you currently work, or previously worked, for NKCH in a position in the nursing, radiology, respiratory therapy, case management or plant operations departments, and that the attendance and rounding policies at issue in this lawsuit applied to you.
This notice informs you of the existence of a collective action lawsuit in which you may become a member. It also explains what you need to do to participate, or not participate and how your rights may be affected.
On [DATE****, 2015], the Honorable Ortrie Smith, United States District Judge for the Western District of Missouri, authorized the sending of this Notice to inform you of your rights.
2. What is a collective action and who is involved?
In a collective (or class) action lawsuit, one or more people called "Class Representatives" (in this case former NKCH employee Amanda Davis) sue on behalf of other people who have similar claims. The people together are a "Class" or "Class Members." The individual who sued-and all the Class Members like him or her-are called the plaintiffs. The company they sued (in this case NKCH) is called the defendant. Unless each employee's case ends up being tried separately, one Court resolves the issues for everyone in the Class-except for those people who choose not to join the Class.
The Court has determined that hourly, nonexempt employees who worked for NKCH in the nursing, radiology, respiratory therapy, case management or plant operations departments to whom certain attendance and rounding policies applied and who worked at any time from ___, 2012 to the present, may have enough similar claims that it makes sense to have those claims combined into one case.
3. What does the lawsuit complain about?
In the lawsuit, the plaintiff says that NKCH failed to pay certain hourly employees for all of the hours that they work(ed), including overtime work. Specifically, the plaintiff claims that NKCH implemented a policy that rounded employees' times, and at the same time maintained policies that prohibited employees from clocking in late. Plaintiff claims that this rounding improperly benefitted NKCH and that employees should be paid for all hours worked, instead of the rounded time.
The plaintiff claims that NKCH did not pay employees for all of their work times, as required by law, and consequently she and all others with similar claims, are owed unpaid wages, including overtime, as well as additional damages allowed by the law and attorneys' fees.
4. What is NKCH's position in the lawsuit?
NKCH believes that its policies are legal and appropriate. NKCH denies that it has violated the Fair Labor Standards Act (FLSA) or any other law. To the contrary, NKCH asserts that at all times its pay practices complied with the FLSA and legal requirements and that employees were paid properly.
5. Has the Court decided who is right?
The Court has not decided whether NKCH or the plaintiff is correct. By establishing the collective action and issuing this Notice, the Court is not suggesting that the plaintiff will win or lose this case. The plaintiff must prove the claims. Therefore there are no money or benefits available now.
Once people have had the chance join the lawsuit, the Court will decide whether the people who have joined may participate in the case as class members. Only people "similarly situated" to the plaintiff may participate as class members. To determine whether you are indeed a proper member of the class, NKCH will likely ask the Court to engage in a review of the circumstances of your employment with NKCH, taking into account factors such as employment setting, recording and payment for time worked, NKCH policies, any defenses asserted by NKCH, and other procedural issues.
YOUR RIGHTS AND OPTIONS
6. How do I join?
To participate in this lawsuit, you need to fill out the Consent to Join form and mail it in the enclosed self-addressed stamped envelope. It is entirely your own decision whether or not to join this lawsuit.
If you do not return the Consent to Join form, you will not be allowed to participate in any recovery for the federal overtime claims in this lawsuit and may be jeopardizing your right to sue.
If you decide to join this suit, you will be bound by the settlement or judgment, whether it is favorable to you or not. If there is a favorable resolution to you, either by settlement or judgment, and you qualify, you will be entitled to some portion of the recovery.
7. What if I do nothing?
If you do nothing, you will not participate in the collective action. You will not be bound by any decision on the federal overtime suit. Therefore, you will not be entitled to any recovery should there be any for those claims.
You can also start your own lawsuit against NKCH. You'll have to retain your own lawyer for that lawsuit, and you'll have to prove your claims. If you do exclude yourself so you can start or continue your own lawsuit against NKCH, you should talk to your own lawyer soon, because your claims may be subject to a statute of limitations.
8. Can NKCH take some action against me if I join?
NKCH has promised not to take any action against you should you join this lawsuit. Such conduct would also be illegal and you would be entitled to damages should a court determine NKCH took any action against you for joining this lawsuit.
9. Do I have to do anything to help out with the lawsuit once I join?
The lawyers will handle most of the presentation of the case. From time-to-time, your lawyers will ask you for information or documents and you would need to give that information to them. You may need to testify under oath in a pre-trial deposition as part of discovery in the case. Should there be a trial, some Plaintiffs may testify. Regardless, if you are asked to give information, the attorneys will work with you so that the process is as convenient for you as possible.
THE LAWYERS REPRESENTING YOU
10. Do I have a lawyer in this case?
The law firms of Williams Dirks Dameron, LLC and The Employee & Labor Law Group of Kansas City, LLC., are representing the plaintiffs in this action. They are experienced in handling similar cases against other employers. More information about the law firms, their practices, and their lawyers' experience is available at www.elgkc.com and www.williamsdirks.com.
Unless you choose another lawyer (see below), these attorneys would represent you in the action.
11. Should I get my own lawyer?
You do not need to hire your own lawyer because The Employee & Labor Law Group of Kansas City, LLC and Williams Dirks Dameron, LLC are working on your behalf. But, if you want your own lawyer, you will have to retain that lawyer. For example, you can ask him or her to appear in Court for you if you want someone other than The Employee & Labor Law Group of Kansas City, LLC and Williams Dirks Dameron, LLC to speak for you. If you decide to have another attorney represent you, that attorney will need to draft a consent form for you which you should then mail to The Employee & Labor Law Group of Kansas City, LLC. and Williams Dirks Dameron, LLC.
12. How will the lawyers be paid?
If the attorneys get money or benefits for the employees, they will ask the Court for fees and expenses. You won't have to pay these fees and expenses. If the Court grants the lawyers' request, the fees and expenses would be either deducted from any money obtained for the Class or paid separately by NKCH.
If the Plaintiff obtains money or benefits as a result of the trial or a settlement, you will be notified about how to participate. We do not know how long this will take.
GETTING MORE INFORMATION
13. Are more details available?
You can receive more information about this lawsuit by contacting the Plaintiffs' attorneys. You can contact the Plaintiff's attorneys at:
If you have questions about this lawsuit or your rights, you may contact Plaintiffs' counsel using the contact information set forth above, or consult another attorney of your choosing.
14. Who at NKCH can answer my questions?
You can also receive more information from NKCH. You can contact representatives of NKCH at:
COUNSEL JOHN VERING'S CONTACT INFORMATION
YOU MUST COMPLETE AND RETURN THIS DOCUMENT IF YOU WISH TO JOIN THE LAWSUIT
CONSENT TO JOIN
My name is _________________ (print name) I worked in the position of _______________ at North Kansas City Hospital (NKCH), from on or about _________ (month, year) to on or about ___________ (month, year). By my signature below, I hereby authorize the filing and prosecution of claims in my name and on my behalf to assert a claim against NKCH for alleged failure to pay me any wages and overtime required to be paid under federal law as brought in these proceedings. I also authorize the filing of this consent in the action(s) challenging NKCH's alleged failure to pay wages and overtime in this and any subsequent actions that may or may not be filed post decertification, as needed. I specifically authorize the named Plaintiff, along with counsel of record for the named Plaintiff, as my agents to prosecute this lawsuit on my behalf and to negotiate a settlement of any and all compensation claim(s) I have against NKCH, regarding my overtime claims. I hereby consent, agree and opt-in to become a party Plaintiff herein and be bound by any judgment of the Court or any settlement of this action.
IF YOU CHOOSE TO PARTICIPATE YOU MUST RETURN THIS FORM IN AN ENVELOPE POSTMARKED NO LATER THAN ( insert date)