United States District Court, W.D. Missouri, St. Joseph Division
ALBERT J. ASTARITA, DIANA M. OWENS, Plaintiffs,
MENARD, INC., Defendant.
ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR
CORRECTIVE NOTICE AND EQUITABLE TOLLING
ROSEANN A. KETCHMARK, JUDGE
the Court in this collective action under the Fair Labor
Standards Act (“FLSA”) is Plaintiff Diana M.
Owens's Motion for Corrective Notice and Equitable
Tolling. (Doc. 162.) The Second Amended Complaint in this
case alleges that Defendant Menard, Inc.
(“Menard”) violated the FLSA and state law by
failing to pay employees for participating in its in-home
training program. (Doc. 78.) Plaintiff's motion argues
that the Court should approve a corrective class notice and
equitably toll the statute of limitations for certain
putative class members because Menard required them to sign
class and collective action waivers while this case was
pending. For the reasons below, the motion is GRANTED
in part and DENIED in part.
Specifically, the corrective notice is
APPROVED, but Plaintiff's request for
equitable tolling is DENIED without
prejudice as unripe.
to June 2016, all of Menard's hourly non-management
employees signed employment agreements that contained
arbitration clauses with class and collective action waivers.
(Doc. 163 at 5-6.) In June 2016, Menard entered into a
settlement with the National Labor Relations Board
(“NLRB”) that required Menard to revise its
employment agreements so non-management employees could
pursue class or collective actions in court. (Id. at
4.) As a result, the employment agreements of non-management
employees hired between June 2016 and May 2018 did not
contain arbitration clauses with class or collective action
waivers-at least initially.
Albert Astarita filed this action on December 21, 2017. On
March 1, 2018, Menard sought to place him in a management
position, to which the NLRB carveout did not apply, and
presented him with a new employment agreement that contained
an arbitration clause with a class and collective action
waiver. Astarita refused to sign it, and he was fired. On
March 6, 2018, Astarita moved for an injunction seeking
(among other things) reinstatement as an employee and an
order prohibiting Menard from imposing similar arbitration
agreements with class and collective action waivers on other
putative class members. (Doc. 42 at 1-2.) The Court denied
the injunction following a hearing on April 6, 2018, during
which the following exchange occurred:
MR. McCLELLAND: We request that the judge issue an order
prohibiting defendant from attempting to interfere with or
prevent class members from opting in this action by way of
requiring them to sign arbitration agreements that would
waive their rights to participate in this action without
notifying them of this pending action.
THE COURT: And what is Menard's response?
MR. BITTNER: Your Honor, Menard's response is such relief
is not warranted. . . . [I]f in fact the Court would be at
some point inclined to rule that there was conditional
certification and opt-in notice went out, there could be
certainly appropriate explanatory language about the
arbitration issue, assuming that we were that far down the
road at that point. So I don't think it's necessary
. . . .
Mr. McCLELLAND: . . . . All we're asking for is a
notification that anyone issued an arbitration agreement
there is pending litigation.
THE COURT: I think we have tools to address any potential
harm in the future if your relief is not granted today, so I
won't grant relief in that aspect either at this
(Doc. 115 at 37-40.)
next month, on May 21, 2018, the Supreme Court handed down
Epic Systems Corporation v. Lewis, 138 S.Ct. 1612
(2018). In Epic Systems, the Supreme Court abrogated
the NLRB's view of the law and held that the National
Labor Relations Act (“NLRA”) does not prohibit
employers from enforcing class and collective action waivers.
In the wake of Epic Systems, while this case was
pending, Menard resumed its practice of inserting arbitration
clauses with class and collective action waivers in its
employment agreements for new non- management employees and
current non-management employees who were up for “merit
reviews.” (Doc. 163 at 12-13.)
November 13, 2018, the Court compelled Plaintiff Albert
Astarita to arbitration, leaving only Owens as the named
plaintiff. (Doc. 113.) Then, following a telephone conference
on November 27, 2018, the Court certified the following