Class Action Complaint Alleging Failure to Pay Employees for Time Incurred Doffing and Donning Protective Gear Satisfied Rule 23 Requirements for Class Action Certification Wisconsin Federal Court Holds
Plaintiffs filed a labor law class action against their employer, Kraft Foods, alleging violations of the Federal Labor Standards Act (FLSA) for failure to pay them for time spent doffing and donning protective gear at a meat processing plant; the class action complaint alleged that employees were required “to put on several items of safety and sanitation equipment and then walk to their work stations” before clocking in for the day, and were required to reverse the process after clocking out at the end of the day. Spoerle v. Kraft Foods Global, Inc., ___ F.Supp.2d ___ (W.D. Wis. May 5, 2008) [Slip Opn., at 1]. As the court explained at page 4, Kraft “requires that all hourly employees wear certain company-provided items in the performance of their jobs: footwear…, hair nets, beard nets…, protective headgear…, polyester frocks, and ear plugs or ear muffs,” and that some employees are required to wear cotton shirts and/or safety glasses. Employees are required to don this gear before swiping in, and to doff the gear after swiping out, id., at 5. The time incurred by employees to comply with this requirement varies, as does the time incurred in walking to/from the employee’s workstations. Id., at 1. The gravamen of the class action is that Kraft’s failure to pay for this “off the clock” time violates federal and state labor laws. Id. Defense attorneys moved for summary judgment on the grounds that the time at issue was not compensable because it fell within the scope of various exceptions under the FLSA; the district court denied the motion. See Spoerle v. Kraft Foods Global, Inc., 527 F.Supp.2d 860 (W.D. Wis. 2007). Plaintiffs moved the court to certify a collective action under the FLSA and a Rule 23(b)(3) class action under Wisconsin state law, Spoerle, at 2; the district court granted plaintiffs’ motion, finding this to be “an easy case” for certification of a class action, id., at 3.
The federal court first addressed the defense argument that the state and federal class action claims could not be prosecuted in the same action, based on the theory that “a plaintiff should not be allowed to maintain a representative action involving both federal and state law wage claims because of the procedural differences between the two types of claims.” Spoerle, at 8. This argument is premised on the fact that employees must affirmatively “opt in” to the FLSA class action to be members of the class, but the same employees are deemed members of the state law class action unless they affirmatively “opt out.” Id. According to defense attorneys, “potential plaintiffs will be hopelessly confused by the differences between the two claims and will be unable to make an intelligent decision regarding whether to opt in or out of the lawsuit,” id.; this confusion is exacerbated by plaintiffs’ unilateral and premature notice to the class, which “contained inaccurate information,” id., at 9. The district court agreed that “plaintiffs made a foolish blunder,” id., at 9, but concluded that any confusion could be addressed through carefully drafted notices, id., at 8-9.
Turning to the merits of the motion, the district court first held that court approval was required for FLSA collective actions under § 216(b), see Spoerle, at 9-11, and observed that defense attorneys did not contest numerosity or commonality under Rule 23(a)(1) and (a)(2), or that the class was ascertainable, id., at 11. Rather, the defense argued that the claims of the named plaintiffs were not “typical” of the putative class under Rule 23(a)(3) and that the named plaintiffs are not “similarly situated” under § 216(b). Id. But while employees donned different gear and walked different distances, this argument went to damages only, not to the typicality of the claims. Id., at 12. The pertinent question is whether the differences would render “piecemeal litigation a superior vehicle for resolving each of the claims, id., at 12-13, and the court concluded – consistent with several other court cases certifying as class actions cases seeking compensation “for donning and doffing safety equipment,” id., at 15 – that this was not the case, id., at 16.
Finally, the federal court quickly disposed of defendant’s challenge to the adequacy of representation requirement set forth in Rule 23(a)(4). See Spoerle, at 17 et seq. The main argument advanced by defense attorneys concerned a premature notice sent to class members by plaintiffs’ counsel, but the while the court found this to be a “mistake and not an insignificant one,” it concluded on balance that the conduct did not rise to the level of misconduct relied upon by other courts to find putative class counsel inadequate. Id., at 18. Thus, “counsel’s representation has not been flawless, but it is at the very least adequate.” Id., at 20. (The district court did order, however, that “plaintiffs must send curative notices and obtain new consents,” though it denied a request for additional sanctions. Id., at 21.)
At bottom, the district court found that “[t]his is an easy case for class certification: plaintiffs are challenging defendant’s policy of refusing to pay hourly employees for certain activities; the class is limited to those employees who engage in those activities.” Spoerle, at 3. Accordingly, it granted plaintiffs’ motion for class action treatment, id., at 20, 22-23.
NOTE: The federal court characterized as “ironic” defendant’s claim that liability could not be determined on a class-wide basis when it had “moved for summary judgment before almost any discovery had been conducted, arguing that it was possible to resolve the entire case as a matter of law without regard to the differences between the plaintiffs.” Spoerle, at 11. The court noted that Kraft “makes no effort to reconcile the apparent inconsistency of its views at different stages of the case.” Id.