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Astarita v. Menard, Inc.

United States District Court, W.D. Missouri, St. Joseph Division

November 8, 2019

MENARD, INC., Defendant.



         Before 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.


         Prior 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.

         Plaintiff 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 or warranted.
. . . .
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 juncture.

(Doc. 115 at 37-40.)

         The 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.)

         On 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 ...

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