For the foregoing reasons, Plaintiffs’ Motion to Facilitate Section 216(b) Notice is denied.

Plaintiffs’ Motion for Class Certification, as to Counts I and II, is granted,

Dated: ( cals /5, 2602

. DARRAH
United States District Judge

13



Defendant is not exempt from Plaintiffs’ FLSA claims.

Defendant next argues that Plaintiffs’ claims are barred by the CBA between the parties
pursuant to Leahy v. City of Chicago, 96 F.3d 228 (7th Cir. 1996) (Leahy).

In Leahy, a group of Chicago police officers sued the City of Chicago under the FLSA for
failing to pay the officers for their meal periods. The district court granted summary judgment to
the City of Chicago, finding that the meal periods werc not compensable time pursuant to the
officers’ CBA. Leahy, 96 F.3d at 230. On appeal, the Seventh Circuit affirmed, concluding that the
CBA for the police officers defined meal periods as non-working times and provided that officers
who worked eight-and-one-half-hour shifts, including a half-hour meal period. Pursuant to the CBA,
police officers who worked more than 80 hours in a 14-day period were paid overtime, Accordingly,
to the extent that any officer actually worked through a meal period, the CBA’s overtime provision
protected the officers’ right to payment in accordance with the FLSA. Leahy, 96 F.3d at 232.
Because the CBA protected the police officers’ FLSA rights and the grievance procedure was the
most efficient method of handling individual officers’ claims that they worked through their meal
periods, the court held that the officers’ FLSA claims were barred by the CBA. Leahy, 96 F.3d at
232.

The majority opinion in Leahy did not cite or mention the Supreme Court’s decision in
Barrentine v. Arkansas-Best Freight Sys., Inc.,450 U.S. 728 (1981) (Barrentine). In Barrentine, the
Court reversed the Lighth Circuit’s ruling that plaintiffs’ submission of their wage claim to
arbitration pursuant to their CBA barred them from bringing a FLSA claim. Barrentine, 450 U.S.

at 745. The Court held that “the FLSA rights petitioners seck to assert in this action are independent

of the collective-bargaining process. They devolve on petitioners as individual workers, not as



are not actually similarly situated -- the whole purpose of the second step of the two-step analysis.
Accordingly, Plaintiffs have not met the second step of the two-step analysis; and Plaintiffs’ Motion
to Facilitate Section 216(b) Notice must be denied. See O’Brien v, Morse, 2002 WL 1290392 at *
1 (N.D. Ill. June 11, 2002) (court may take remedial action after discovery if individuals that are
given notice are determined not to be similarly situated); Garza v. Chicago Transit Auth., 2001 WL
503036 at * 3 (N.D. Ill. May 8, 2001)(finding that plaintiffs met the first step of the two-step analysis
does not indicate that all of the employees who are given notice are similarly situated because future
discovery may indicate that they are not).

2. Motion for Class Certification Pursuant to Rule 23

Plaintiffs seek class certification under Federal Rule of Civil Procedure 23(b)(3) of their
TMWL and WPCA claims.’

To receive class certification, Plaintiffs must satisfy all four elements of Rule 23(a), which
include: numerosity, commonality, typicality, and adequacy of representation. Fed. R. Civ. P. 23(a).
Plaintiffs must also satisfy at least one of the three provisions under Rule 23(b).

The propriety of class certification is a separate issue than whether the plaintiff will
ultimately prevail on the merits of its claims. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177
(1974). However, “[t]he proposition that a district judge must accept all of the complaint’s

allegations when deciding whether to certify a class cannot be found in Rule 23 and has nothing to

Plaintiffs point out that Defendant cannot credibly argue that a Rule 23 analysis unfairly
denies Defendant the opportunity for discovery on the issues material to that rule, Defendant has
known the names of the present 350 Plaintiffs for an extended period of time and yet have not
propounded any written discovery regarding this issue. Also, Defendant did not take any
depositions when Plaintiffs offered to produce these Plaintiffs for deposition on this issue after
all discovery closed on July 16, 2002.



conflicting provisions in a collective bargained compensation arrangement”). Furthermore, Plaintiffs
are alleging that they have not been paid for work that is clearly compensable. Accordingly,
“Barrentine protects the employee’s congressionally-granted right to seek redress through the FLSA
in court.” Schwertfeger v. Village of Sauk Village, 2001 WL 293115 at * 3 (N.D, Til, March 23,
2001).

Defendant also asserts that the named plaintiffs have waived their claims for unreported
overtime because they did not file a grievance for such overtime pursuant to the CBA. Defendant’s
argument ignores Burrentine as cited above, holding that FLSA rights are independent of the
collective-bargaining process and are not waivable. See Barrentine, 450 U.S. at 745. Furthermore,
unlike the Leahy plaintiffs, who actively bargained for the compensability of the meal periods in
question and agreed that such meal periods would not be compensable, but then filed suit under the
FLSA to recover payment during those meal periods. To the contrary, the instant Plaintiffs did not
“bargain away” their rights to overtime compensation.

Defendant argues that Plaintiffs cannot bring suit under the FLSA because they were required
to exhaust their remedies in the CBA, i.e., the arbitration clause of the CBA. Again, Defendants
ignore Barrentine. See Barrentine, 450 U.S. at 745 (FLSA rights are independent of the collective-
bargaining process and are not waivable). Furthermore, the arbitration clause provides that the
nurses’ association only, not individuals, may but are not required to pursue arbitration of disputes
under the CBA.

Defendant also argues that Plaintiffs cannot bring the instant suit because they failed to report

the unapproved overtime, citing Bjornson v. Daido Metal U.S.A., Inc., 12 F. Supp. 2d 837 (N.D. IL.

1998) (Bjornson).



members of a collective organization. They are not waivable.” Barrentine, 450 U.S. at 745.

In light of Barrentine, a broad reading of Leahy that any employee covered by a CBA with
an overtime provision is barred from being a FLSA claim has been rejected. See Schwertfeger v.
Village of Sauk Village, 2001 WL 293115 (N.D. Ill. March 23, 2001). The more reasonable
interpretation of Leahy is that “it is appropriate for cmployers and employees who define
compensable work in their CBA to resolve disputes [about] that issue through the CBA’s grievance
procedures, But when an employec is not being paid for work that is clearly compensable ...
Barrentine protects the employee’s congressionally-granted right to seck redress through the FLSA
in court.” Schwertfeger v. Village of Sauk Village, 2001 WL 293115 at * 3 (N.D. Ill. March 23,
2001).

In the instant case, Plaintiffs seek compensation for time worked before and after their
official shifts, including training required for their job. The applicable CBA requires that Plaintiffs
be paid onc and one-half times the average of the regularly hourly rate for all hours worked in excess
of cight hours in any regular work day, or over eighty hours in any regular pay period. The regular
work day is eight and one-quarter hours of clapsed time, including thirty-minute paid lunch period,
which is counted as eight hours worked. The CBA also sets forth the Plaintiffs’ work periods.
However, the CBA does not define work and does not indicate whether the work that Plaintiffs seek
compensation for (time worked before and after their official shifts) is or is not compensable work.
Because the employer and cmployee did not define compensable work in their CBA, it is not
appropriate to resolve the present dispute through the CBA’s grievance procedures. See
Schwertfeger v, Village of Sauk Village, 2001 WI. 293115 at * 3 (N.D. Ill. March 23, 2001); see also

Barrentine, 450 U.S. at 740-41 (“congressionally-granted FLSA rights take precedence over



nurses with very similar job duties who are now or have been engaged in similar uncompensated
work. The nurses’ positions are all covered by the same CBA. The Second Amended Complaint
also contains 350 signed consent forms by other employees of Cook County Hospital that believe
that they are entitled to additional wages for overtime work. Based on these allegations, Plaintiffs
have demonstrated a sufficient factual nexus between their situation and the situation of other
employees at Cook County Hospital. Plaintiffs have submitted sufficient evidence demonstrating
that they and other nurses are all acting under the same CBA, the same policies and practices, and
conduct the same or substantially similar jobs.

Whether Plaintiffs mect the second step of the inquiry poses a different twist as discovery
in the instant case has already closed’, and the second step consists of the court determining whether
the class should be restricted based on the “similarly situated” requirement after discovery is
complete. See O’Brien v. Morse, 2002 WL 1290392 at * 2 (N.D. Ill. June 11, 2002); Garza v.
Chicago Transit Auth., 2001 WL 503036 at * 2 (N.D. Ill. May 8, 2001). Because discovery is
closed, discovery for any of the new individuals that chose to opt in cannot take place.

Plaintiffs concede that the trend in this circuit is the two-step method and not the Rule 23
method. [owever, Plaintiffs argue that the second stcp is simply not applicable to the instant case
because discovery has closed; thercfore, the Court should apply the Rule 23 analysis. Plaintiffs’
argument is without merit and is made because Plaintiffs cannot mect the second step of the two-step
analysis as discovery is closed. No discovery can take place as to any new plaintiffs. Thus,

Defendant would not be afforded the opportunity to demonstrate that some of the opt-in Plaintiffs

‘Discovery in the instant action closed on July 16, 2002; and trial is scheduled for January
13, 2003.



‘Minute Order Fort (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge rah Sitting Judge if Other
or Magistrate Judge John W. Da than Assigned Judge
CASE NUMBER 01C 6119 DATE 11/13/2002
CASE MARIA BELBIS, et al vs. COUNTY OF COOK.
TITLE
[In the following box (a) indicate the party filing the motion, c.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented, ]
POCKET ENTRY:
qd) Oo Filed motion of [ use listing in “Motion” box above]
Q a Bricf in support of motion due
(3) a Answer brief to motion due, . Reply to answer bricf due .
(4) Oo Ruling/Hearing on set for at
(5) o Status hearing[held/continued to] (set for/re-set for] on set for at
(6) im) Pretrial conference[held/continucd to] [set for/re-set for] on sct for at .
(7) Q Trial[set for/re-set for]on_ at
(8) oO [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) ClLocal Rule 41.1 OOFRCP41(a\(1) OO FRCP41(a)(2).

qo [Other docket entry] | Enter Memorandum Opinion And Order. Plaintiffs’ motion to facilitate

section 216(b) notice is denied, Plaintiffs’ motion for class certification, as to counts II and IJ, is granted.
di) of [For further detail see order attached to the original minute order.]

No notices requited, advised in open court.

No notices required,

umber of polices

Notices mailed by judge's staff.

Notified counsel by telephone,

date docket
wo | Docketing to mail notices.
Mail AO 450 form. dynos LOM ISig s'n dacketing deputy initials ]
Copy to judge/magistrate judge. M }
AST Md SL ACHE wet ns
courtroom LACM? dave mailed notice
LG deputy's teeny ee
inal Coy
Date/time received in
ventral Clerk's Office, sailing deputy initials



Commonality and Typicality

Commonality exists if the class members share common questions of law or fact. The
requirement is usually satisfied when a common nucleus of operative facts unites a class. Rosario
v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992), The presence of some factual variations among
the class members does not defeat commonality, so long as there is at least one question of law or
fact common to the class. Rosario, F.2d at 1017.

The typicality requirement of Rule 23(a)(3) is closely related to the commonality requirement
of Rule 23(a)(2). Ruiz v. Stewart Associates, Inc., 171 F.R.D. 238, 242 (N.D. Ill. 1997). A
plaintiff's claim is typical if it arises from the same event or practice or course of action that gives
rise to the claims of other class members and if his or her claims are based on the same legal theory.
Rosario, 963 F.2d at 1018.

Here, Plaintiffs allege that Cook County has violated the IMWL and WPCA by failing to pay
nurses at Cook County overtime for work performed during pre- and post-shift briefings, post-shift
activities, and job-related training activities. The alleged failure to pay nurses at Cook County arise
from the same events and courses of action, and the claims are based on the same legal theory.
Accordingly, commonality and typicality exist in the instant case. See Rosario, 963 F.2d at 1017-
18; Ladegaard v, Hard Rock Concrete Cutters, Inc., 2000 WL 1774091 at * 4-5 (N.D. Ill. Dec. 1,
2000) (certifying class action for alleged unlawful failure to pay employees for certain categories of
work performed during a particular period of time).

Adequacy of Representation
The class representatives must “fairly and adequately protect the interests of the class”. Fed.

R. Civ, P. 23(a). In determining adequacy of class representation, the court considers whether (1)

11



recommend it.” Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Szabo).
Before certifying a class “ a judge should make whatever factual and legal inquiries are necessary
under Rule 23.” Szabo, 249 F.3d at 676. For example, a district court would not be free to accept
an allegation of 10,000 class members for purposes of numerosity in the face of a dispute on that
point. See Szabo, 249 F.3d at 676. However, contrary to Defendant's overly broad reading of
Szabo, the court does not undertake a review of the merits as if it were determining a motion for
summary judgment. Accordingly, the Court does not determine the substantive strength or
weakness of the allegations in (he complaint but rather the merits of the allegations only as they bear
on the suitability of a class action suit under Rule 23(a) and (b), See Rahim v. Sheahan, 2001 WL
1263493 at * 10 (N.D, IIL. Get. 19, 2001).

Numerosity

Rule 23(a)(1) requires that the class be so numerous that joinder of all the members is
impracticable. Fed. R. Civ. P. 23(a)(1). Plaintiff need not demonstrate the exact number of class
members so long as a conclusion is apparent from good-faith estimates ( Peterson v. H & R Block
Tax Servs., 174 F.R.D. 78, 81 (N.D. Ill, 1997)), and the court is entitled to make “common sense
assumptions” in order to support a finding ofnumerosity (Grossman v. Waste Management, Inc., 100
F.R.D. 781, 785 (N.D. Ill. 1984)).

Plaintiffs allege that the five named plaintiffs, the 350 other nurses that have filed consent
forms as to the FLSA claims who have similar claims, and the additional nurses that exist at Cook
County who have not yet been informed of the complaint satisfies the numerosity requirement. This
is supported by the Second Amended Complaint, the attached signed consent forms, and the large

size of Cook County Hospital. The numerosity requirement is satisfied.

10



The Bjornson court granted the employer’s motion for summary judgment after finding that
the employee did not provide evidence that he reported the alleged unpaid overtime or that the
employer had actual or constructive knowledge of the alleged overtime. Bjornson, 12 F. Supp. 2d
at 841-42. Contrary to Byornson, Plaintiffs in the instant case have provided evidence through
declarations and affidavits that Defendant was aware of the alleged overtime. Accordingly, Bjornson
is inapplicable to the instant case.

Defendant next argues that Plaintiffs have failed to satisfy the requirements of
Section 216(b).

A plaintiff must demonstrate that the persons plaintiff seeks to provide notice are “similarly
situated” to the plaintiff to satisfy the first step of the two-step method for determining whether
notice should be provided under 216(b). Such is demonstrated by showing that the plaintiff and the
proposed potential plaintiffs were victims of a common policy, plan, or practice. See Garza v.
Chicago Transit Auth., 2001 WL 503036 at * 2 (N.D. Ill. May 8, 2001); Realite v. Ark Restaurants
Corp., 7 F. Supp. 2d 303, 306 (S.D.N.Y. 1998); Thiebes v. Wal-Mart Stores, Inc., 1999 WL
1081357 at * 2 (D. Or. Dec. 1, 1999). The second step consists of the court determining whether the
class should be restricted based on the “similarly situated” requirement after discovery is complete.
See O'Brien y. Morse, 2002 WL 1290392 at * 2 (N.D. Ill. June 11, 2002); Garza v. Chicago Transit
Auth,, 2001 WL 503036 at * 2 (N.D. Ill. May 8, 2001).

In support of their motion, the named Plaintiffs have provided signed declarations of nurses
that are employed by the Defendant and that have been required to regularly perform pre-and post-
shift activitics without proper compensation, in addition to job-related training activities for which

they are not compensated. Furthermore, in their respective departments, there are numerous other



2000 WL 198888 (N.D. Ill. Feb, 8, 2000); Realite v. Ark Restaurants Corp., 7 F. Supp. 2d 303, 306
(S.D.N.Y, 1998); of Burns v. Village of Wauconda, 1999 WL 529574 (N.D, Ill. July 15, 1999)
(applying Rule 23 standard).

Defendant first argues that Plaintiffs’ motion should be denied because the named plaintiffs
cannot support their individual claims because: (1) Section 207(j) exempts the Defendant from
Plaintiffs’ FLSA claims, (2) Plaintiffs’ claims are barred by the collective bargaining agreement
between the parties, (3) the claims have been waived, (4) plaintiffs failed to exhaust remedies under
the CBA, and (5) Plaintiffs did not report or get approval for the alleged overtime.

Section 207(j) provides that:

No employer engaged in the operation of a hospital or an
establishment which is an institution primarily engaged in the care of
the sick, the aged, or the mentally ill or defective who reside on the
premises shall be deemed to have violated subsection (a) of this
section if, pursuant to an agreement or understanding arrived at
between the employer and the employee before performance of the
work, a work period of fourtecn consecutive days is accepted in lieu
of the work-week of seven consecutive days for purposes of overtime
computation and if, for his employment in cxcess of eight hours in
any workday and in excess of eighty hours in such fourteen-day
period, the employee receives compensation at a rate not less than one
and one-half times the regular rate at which he is employed.
29 U.S.C. § 207()).

Defendant cites several aspects of the Plaintiffs’ collective bargaining agreement (“CBA”)
to demonstrate that Cook County meets the requisites of Section 207(j). However, while the CBA
may include provisions that demonstrate that Section 207(j) is applicable, such does not negate

Plaintiffs’ allegations that they are not paid straight time and/or overtime for time worked during pre-

and post-shift briefings, during post-shift activities, and for job-related training. Accordingly,



public. Plaintiffs are medical nurses employed at Cook County Hospital. Defendant has failed to
pay Plaintiffs and other similarly situated employees straight time and/or overtime wages for time
worked during pre- and post-shift briefings, post-shift activities, and job-related training activities.
Defendant has also failed to pay Plaintiffs overtime based on the correct rate of overtime pay and
failed to maintain the required records of hours worked and wages paid.
1. Motion to Facilitate Section 216(b) Notice

Plaintiffs seek to facilitate notice under the FLSA pursuant to 29 U.S.C. § 216(b). Plaintiffs
allege that they have met the requirements to facilitate notice under the two-step method utilized by
the majority of courts or, in the alterative, via the Federal Rule of Civil Procedure 23 analysis.

The FLSA allows a plaintiff to sue on behalf of “other employces similarly situated” in an
action to recover unpaid overtime wages. 29 U.S.C § 261(b), A “representative plaintiff’ has the
right to “notify the people he would like to represent that he has brought a suit.” See Woods v. New
York Life Ins. Co., 686 F.2d 578, 580 (7th Cir. 1982) (Woods). A collective action under Section
216(b) differs from a class action under Federal Rule of Civil Procedure 23. In contrast to a class
action under Rule 23, members of a FLSA representative action “opt in”; and they are not bound by
the decision of the court unless they do “opt-in”. See Woods, 686 F.2d at 580; O'Brien y. Morse,
2002 WL 1290392 (N.D. Ul. June 11, 2002).

In light of this difference, courts do not require the representative plaintiff meet the stricter
test under Rule 23. Instead, the courts apply a two-step method in determining whether the
representative plaintiff is “similarly situated” with the potential claimants he or she wishes to

represent. See O’Brien v. Morse, 2002 WL 1290392 (N.D. Ill. June 11, 2002); Garza v. Chicago

Transit Auth., 2001 WL 503036 (N.D. Ill. May 8, 2001); Pfaahler v. Consultants for Architects, Inc.,



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MARIA BELBIS and TINA WARREN,
individually and on behalf of a class of employees
similarly situated; and MARTA BELBIS, TINA
WARREN, TIFFANY TAYLOR, DOROTHEA
PURNELL, SHERYL NELLA, and all others who
have had a consent to join filed in this case,

No. 01 C 6119
Plaintiffs,
Judge John Darrah
ve

COUNTY OF COOK,

Defendant.

wee SS eS Se SS SS

MEMORANDUM OPINION AND ORDER

Plaintiffs, Maria Belbis (‘“‘Belbis”) and Tina Warten (“Warren”), filed a class action against
Defendant, County of Cook (“Cook County”), alleging violations of the Illinois Minimum Wage
Law (“IMWL”), 820 ILCS 105/1 et seq, (Count II), and the Wage Payment and Collection Act
(“WPCA”), 820 ILCS 115/1 et seg. (Count II), Plaintiffs, Belbis, Warren, Tiffany Taylor
(“Taylor”), Dorothea Purnell (“Purell”), and Sheryl Nella (“Nella”), and all others that have had
a consent to join in this case, also allege Defendant violated the Fair Labor Standards Act (“FLSA”),
29 U.S.C.§ 201 et seq (Count IV). Presently before this Court are two motions: (1) Plaintiffs’
Mation to Facilitate Section 216(b) Notice and (2) Motion for Class Certification.

A reading of the Second Amended Class Action Complaint supports the following summary
of the alleged conduct of the parties.

Defendant operates Cook County Hospital, which provides medical services to the general

4)



any conflicts of interest cxist between the named plaintiffs and the class members and (2) whether
the named plaintiffs’ counsel will adequately protect the interests of the class. Gaspar v. Linvatec
Corp., 167 F.R.D. 51, 58 (N.D. Ml, 1996).

Cook County does not argue that Plaintiffs’ counsel would not provide adequate class
representation. Cook County repeats its previously rejected argument that the named Plaintiffs
cannot assert the claims set forth in the Second Amended Complaint. Plaintiffs’ counsel is
experienced in multi-plaintitf wage and hour litigation, and the Court cannot identify any conflicts
between Plaintiffs and the class members or an inadequacy in Plaintiffs’ counsel’s ability to protect
the interests of the class.

Rule 23(b)(3)

Plaintiff seeks class certification under Rule 23(b)(3). Rule 23(b)(3) provides that a class
action may be maintained if “questions of law or fact common to the members of the class
predominate over any questions affecting only individual members, and that a class action is superior
to the available methods for the fair and efficient adjudication of the controversy.” Fed. R. Civ. P.
23(b)(3).

As discussed above, the questions of law and fact to the members of the class, as set forth
in the Sccond Amended Complaint, are similar to the proposed class members and would
predominate over questions affecting individual class members. Furthermore, a class action is
superior to the available methods for the fair and efficient adjudication of this controversy.

Accordingly, the Court finds that the requirements of Rule 23(b)(3) are met.

12