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Labor & Employment – FLSA – Class Action – Civil Practice – State Claims

Romero v. Mountaire Farms, Inc. (Lawyers Weekly No. 11-02-0663, 31 pp.) (Terrence W. Boyle, J.) E.D.N.C.

Holding: After eliminating claims related to unpaid lunch breaks, the court certifies a class of defendant’s employees who were not paid for the time they spent before and after their shifts donning, doffing and sanitizing protective gear. The court also decides to exercise supplemental jurisdiction over plaintiffs’ claims under the N.C. Wage and Hour Act and certifies a class under Fed. R. Civ. P. 23.

Plaintiffs’ motion to certify a class is granted in part.

Because Sepulveda v. Allen Family Foods, Inc., 591 F. 3d 209 (4th Cir. 2009), cert. denied, 131 S. Ct. 187 (2010), definitively rejected claims based on allegedly unpaid time that an employee spends donning and doffing before and after unpaid meal periods, the court finds that plaintiffs’ claims must be limited to pre-and post-shift donning and doffing only.

The employer’s request that putative class members provide their dates of employment, their social security numbers, and the names of the department and shift to which they were assigned is denied. The employer claims that the requested information will help expedite the proceedings since, in counsel’s experience, “in many cases the names used by employees and their actual name varies and the social security number is used to find the opt-in plaintiffs’ payroll and time records.”

The employer’s argument is unavailing. The court is unaware of any other cases where such a request has been granted. Because putative class members here should not be made to feel that they must take some type of action before determining their eligibility to participate in the action, the court denies the employer’s request for further identifying information.

Considering the approved class (as more narrowly defined to include only production line employees who were or are paid on a line-time or gang-time basis and excluding those employees asserting claims for uncompensated meal time), the court finds that the members of the class are so similarly situated as to warrant conditional certification of a collective action pursuant to 29 U.S.C. § 216(b).

The named plaintiffs and the other members of the proposed class were or are all employed by the defendant-employer at its Lumber Bridge facility. Although all may not have worked in the same department, the proposed class members have all worked on the production line. They complain that the employer’s gang-time or line-time compensation system along with the employer’s personal protection equipment (PPE) deduction policy have deprived them of wages to which they were or are entitled under the Fair Labor Standards Act (FLSA).

The putative class members and the named plaintiffs seek substantially the same form of relief. In essence, they claim they are together the victims of a single decision, policy or plan. Thus, plaintiffs’ “Motion To Certify Class Pursuant to the Fair Labor Standards Act” is granted in so far as it complies with this order.

Plaintiffs’ minimum wage claims under the N.C. Wage and Hour Act (NCWHA) are viable only as to the nine-month period beginning Oct. 2, 2007 and ending July 23, 2008, but plaintiffs’ claims for regular hourly wages and overtime are neither preempted by the FLSA nor temporally limited in scope.

Plaintiffs’ state law claims under the NCWHA share a common nucleus of operative fact with the claims raised under the FLSA. The alleged violations of the NCWHA and the FLSA are based on the same conduct of the employer with regard to many of the same employees occurring over a common period of time. Thus, the court is authorized to exercise supplemental jurisdiction under 28 U.S.C. ¤ 1367(a) over plaintiffs’ NCWHA claims.

Jurisdiction will not be declined under 28 U.S.C. § 1367(c)(I)-(3). Plaintiffs’ claims for improper deductions and claims for regular, minimum, and overtime wages involve standard allegations that do not raise a novel or complex issue of N.C. law. The federal claims, moreover, on which original jurisdiction rests have not been dismissed. Nor will the state law claims substantially predominate over the FLSA claims in terms of proof, the scope of the issues raised, or the comprehensiveness of the remedy sought.

While the class action on the state law claims could involve many more plaintiffs than the collective action on the FLSA claims, the substance and basis of the FLSA claims and the state law claims are virtually indistinguishable. Because the state law claims essentially replicate the FLSA claims, the state law claims plainly do not predominate.

In Zelaya v. J.M. Macias, Inc., 999 F. Supp. 778 (E.D.N.C. 1998), Judge Earl Britt held that it was inappropriate to exercise supplemental jurisdiction over employees’ NCWHA claim because it involved a different and distinct class of plaintiffs than the companion FLSA action. However, Judge Britt himself has since called into doubt the reasoning underpinning his holding in Zelaya.

The weight of authority since Zelaya supports the exercise of supplemental jurisdiction in this case. Consolidating the state law claims with the federal claims would be much more efficient than severing the NCWHA claims at this point. Retaining the state law claims promotes judicial economy because it avoids the problem of parallel lawsuits in state and federal court and avoids duplication of work and the unjustifiable waste of judicial resources.

The FLSA and state law claims are premised on the same facts and will succeed or fail together. Additionally, it is far more convenient for the parties to have their factually similar claims resolved in one forum, despite the logistical problems that could materialize in such a lawsuit. As a result, the court will exercise supplemental jurisdiction over the state law claims in this case.

Plaintiffs have shown that their NCWHA claims meet the threshold requirements of Fed. R. Civ. P. 23.

The projected class size of 2,000 meets the numerosity requirement.

The employer questions the commonality and typicality of plaintiffs’ claims relating to its payroll deductions for PPE replacements. However, plaintiffs have alleged and made a sufficient showing that the employer, as a matter of policy, does not obtain any written authorization from employees before a deduction is taken from their wages.

Plaintiffs’ allegations are sufficient to show that the employer’s deduction practice is commonly employed in violation of G.S. ¤ 95-25.8. Pursuant to that statute, an employer may withhold any portion of an employee’s wages in two situations: (1) when the employer is required or empowered to do so by state or federal law; or (2) when the employer has a written authorization from the employee.

Although there may be certain factual differences among the individual class members, the class members’ claims and the named plaintiffs’ claims arise from the same course of conduct (the employer’s deduction policy), raise common questions of law and fact (whether swiping the employee’s ID card satisfies the requirements of the NCWHA wage deduction provisions), and are based on the same legal theories (violations of 13 NCAC 12. 0305(g) and ¤ 95-25.8 of the NCWHA).

Specifically, these common issues include, inter alia: (1) whether N.C. law precludes the employer from deducting employees’ wages for the replacement of PPE as a result of “on-the-job” normal wear and tear; and (2) whether the employer provided any advance written notice of its intent to make a wage deduction for replacements items of PPE in the manner required by the NCWHA.

The answers to these questions of law and fact are common to plaintiffs and all other production workers at the Lumber Bridge facility.

With respect to the NCWHA wage and overtime claims, the court finds that a limitation on the class similar to the one imposed on the FLSA collective action is necessary. As so limited, the class meets the commonality and typicality requirements of Rule 23(a).

The putative class members were or are all production line employees of the employer’s Lumber Bridge processing plant who were paid on a line time basis. Due to the employer’s line-time policy, plaintiffs allege that they have not been paid regular, minimum, and overtime wages for all time worked as required by North Carolina’s payday statute.

Although there may be certain factual differences among the individual class members, the class members’ claims arise from the same course of conduct (the employer’s use of a line-time system), raise common questions of law and fact (including, without limitation, whether the time spent changing into and out of protective gear and traveling to and from work stations constitutes “work”), and are based on the same legal theory (violations of G.S. ¤ 95 -25.6) as those of the named plaintiffs.

Plaintiffs’ counsel possess the necessary qualifications to meet the adequacy-of-representation requirement.

Furthermore, there are no conflicts or antagonistic interests of the named plaintiffs to the interests of any other production workers. The named plaintiffs have the same interests as all other production workers: recovering the wages earned for all uncompensated work time and full reimbursement for allegedly illegal deductions taken from all affected employees’ wages. Plaintiffs have met the requirement of adequacy of representation.

Finally, the court finds that the legal and factual issues common to the putative class predominate over any individual issues of law or fact.

As limited herein, the plaintiff class is certified.

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