conclusion that its internal classification of the Project Manager II position is “exempt”. This is an
insufficient basis to determine that the Project Manager II position is “exempt” under the FLSA.
Defendant will not be prejudiced if it is determined that the Project Manager II position is “exempt”
after notice has been sent to potential plaintiffs. Jackson v. New York Tel. Co., 163 F.R.D. 429, 431
(S.D.N.Y. 1995) (“[E]ven if plaintiffs’ claims turn out to be meritless . . . notification at this stage,
rather than after further discovery, may enable more efficient resolution of the underlying issues in
this case.”),

Defendant next argues that notice under § 216(b) is improper because the complaint does not
allege a FLSA violation and that Plaintiff's declaration is deficient because it contains inadmissible
facts’. Specifically, Defendant argues that the allegations in the complaint do not meet the
requirements for issuing notice to potential class members.

The complaint alleges that, throughout Plaintiff's tenure with Defendant, she worked in
excess of forty hours per week and was not paid time-and-a-half for the hours worked in excess of
forty hours per week. (Compl. {J 21, 22.) The complaint also alleges that Defendant employed
others who performed the same job duties and responsibilities as Plaintiff and who were not paid
time-and-a-half for hours worked in excess of forty hours per week. (/d. | 23.) The complaint further
alleges that “it is... Defendant’s policy and practice [not] to pay overtime wages to employees
employed in the job position of ‘Account Executive’... .” (Id. ] 24.)

These allegations are sufficient to allege a FLSA violation and meet the requirements for

notice under § 216(b). The complaint alleges that it was Defendant’s policy and practice not to pay

Defendant has filed a separate motion to strike portions of Plaintiff's declaration. For
the reasons stated herein, this motion is denied.

4.


Aff. 711.) This concession implies willfulness on the part of the Defendant, which implies that the
proper statute of limitations is three years. 29 U.S.C § 255(a).

Therefore, Plaintiff's Motion for an Order Authorizing Notice to Similarly Situated Persons
Pursuant to 29 U.S.C. § 216(b) is granted. As Plaintiff concedes, the proper class is employees who
occupy the Project Manager II position who work or worked for Defendant during the past three
years and who (1) worked overtime during that period and (2) did not receive time-and-a-half for
hours worked in excess of forty hours. Defendant’s objections to the form of the order are not

meritorious.

7.


position of Project Manager II is exempt under the FLSA, (2) Plaintiff’s declaration in support of
her motion contains inadmissible facts which are not based on her personal knowledge, (3) the
complaint alleges no facts which establish that a FLSA violation occurred, (4) Plaintiff has failed
to show that any member of the purported plaintiff class has any interest in this action, and (5) the
proposed notice is defective.

Defendant argues that the Project Manager II position is exempt under the FLSA. In support
of this argument, Defendant has attached the affidavit of Richard C. Homiston (“Homiston”),
Defendant’s Director of Human Resources.

According to the Affidavit of Richard C. Homiston, Defendant’s Director of Human
Resources', a Project Manager II’s “primary job duties consist of non-manual work that is directly
related to [Defendant’s] general business operation,” selling Defendant’s Event Services, directing
event projects from start to finish, assisting Defendant's regional and branch managers with planning
and forecasting, assisting customers, assuring that customers have trained staff to maintain
equipment and manage the business, and advising Defendant of its fleet positioning. (Homiston Aff.
46.) A Project Manager II must exercise discretion and independent judgment. (Id. ] 8.) However,
a Project Manager II does not formulate management policies or participate in every aspect of
Defendant’s business as a whole. (/d.) Project Manager II is an “exempt” position, and employees
occupying this position are paid on a salaried basis. (/d. 11.)

Defendant has not identified a specific provision of the FLSA that would exempt Plaintiff's

position from the maximum hour provisions of the FLSA. Rather, Defendant relies solely on the

' A copy of the position description for the Project Manager II position was purportedly
attached as Exhibit A to the Homiston Affidavit. However, there is no Exhibit A to the
Homiston Affidavit.

3.



time-and-half to employees in Plaintiff's position. Furthermore, the Homiston Affidavit actually
supports the allegations in the complaint. Homiston asserts that it was Defendant’s practice and
policy not to pay overtime to Project Manager Is but to pay them on a salaried basis because
Defendant has classified such employees as “exempt” under the FLSA. (Homiston Aff. 11.)
However, if such employees are not “exempt” under the FLSA, then a FLSA violation has occurred,
anda class of employees who were wrongly denied overtime compensation exists. Also, itis curious
that the affidavit submitted by Defendant’s Director of Human Resources does not assert that all
persons employed in Plaintiffs position of Project Manager II are in fact not similarly situated as
Plaintiff. The Declaration filed by Plaintiffin this regard is reasonable based on firsthand knowledge
in material part and is, therefore, unrebutted.

Defendant also argues that notice should not be sent to potential class members because
Plaintiff has not shown that there are other similarly situated individuals who were denied overtime
compensation in violation of the FLSA but who also wish to opt-in to the instant case. Defendant
cites several cases in which named plaintiffs provided affidavits from potential class members before
notice was authorized. See Belbis v. County of Cook, No. 01 C 6119, 2002 WL 31600048 (N.D. Ill.
Nov. 13, 2002); Vazquez v. Tri-State Mgmt. Co., Inc., 2002 WL 58718 (N.D. Ill. Jan. 10, 2002);
Morisky v. Public Serv. Elect. & Gas Co., 111 F. Supp. 2d 493 (D.N.J. 2000); Realite v. Ark Rests.
Corp., 7 F. Supp. 2d at 306; Allen v. Marshall Field & Co., 93 F.R.D. 438 (N.D. Hl. 1982).

However, those cases did not establish an independent requirement of proof of desire to join
in the action for authorization of notice under §216(b). Rather, in those cases, the affidavits of
potential class members were used to determine whether the named plaintiff and potential class

members were similarly situated under § 216(b), see Belbis, 2002 WL 31600048, at *5; Vazquez,

-5-



CONCLUSION

For the reasons stated above, Plaintiff Linda Taillon’s Motion for an Order Authorizing
Notice to Similarly Situated Persons Pursuant to 29 U.S.C. § 216(b) is GRANTED.

Defendant is ordered to (1) submit, within fourteen days of the date of this Memorandum
Opinion and Order, the names and addresses of all potential class members and (2) refrain from any
and all forms of communication with current and prospective class members concerning the merits
and issues of their FLSA claims. Counsel for Plaintiff is ordered to amend Plaintiffs proposed
Notice to conform to the class that has been defined in this Memorandum Opinion and Order, which
shall be sent to all potential class members.

It is further ordered that Defendant’s Motion to Strike Portions of Plaintiff’s Declaration is

DENIED.
IT IS SO ORDERED.
John W. Darrah, Judge
ited States District Court
Date: 25 2203

-8-


5 Minute Oader Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge John W. Darrah Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 8882 DATE 4/25/2003
CASE LINDA TAILLON vs. KOHLER RENTAL POWER, INC.
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

(1) oO Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) a Answer brief to motion due___. Reply to answer briefdue___.

(4) a Ruling/Hearingon__setfor__at

(5) o Status hearing[held/continued to] [set for/re-set for] on setfor at

(6) Oo Pretrial conference[held/continued to} [set for/re-set for]on__—setfor__——at__—.
(7) oO Trial[set for/re-set for]on__ at

(8) Q [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) Local Rule 41.1 OOFRCP4I{a)(1) [ FRCP41(a)(2).

(10) MH (Otherdocket entry] Enter Memorandum Opinion And Order. Plaintiff Linda Taillon’s motion for
an order authorizing notice to similarly situtated persons pursuant to 29 U.S.C. 216(b) is granted.
Defendant is ordered to (1) submit, within fourteen days of the date of this memorandum opinion and
order, the names and addresses of all potential class members and (2) refrain frim any and all forms of
communication with current and prospective class members concerning the merits and issues of their

FLSA claims. Counsel for plaintiff is ordered to amend laintiff’ SP proposed notice to. afore nto Hagcees
e

this Memorandum, which shi af sent
thee nes tee dantts a ion to strike portions of Tlaintize! s dee aration is den:

(1) wes, further detail see order attached to the original minute order.]
‘No notices required, advised in open court.

au

No notices required. surber of notices

APR 2 9 2003

Notices mailed by judge’s staff.
Notified counsel by telephone.

wv | Docketing to mait notices.

Mail AO 450 form. Lunes Jo}:
Copy to judge/magisirae judge. ti
courtroom Ot:O Be day eu
Lo deputy's

initials Datertlelredelvaa bo a itd

central Clerk's Office



2002 WL 58718, at *3; Realite, 7 F. Supp. 2d at 306-7; whether the numerosity requirement for class
certification under Federal Rule of Civil Procedure 23 had been met, Morisky, 111 F. Supp. 2d at
497 n.6; and to determine that judicial economy would be served by notifying potential class
members where other actions were about to be filed. See Allen, 93 F.R.D. at 443.

Plaintiff has adequately alleged and Defendant has conceded that Defendant has a common
plan of not paying overtime wages to Project Manager Is. Thus, Plaintiff has established that the
plaintiff class is similarly situated.

Defendant argues that the proposed notice is defective because: (1) it is overly broad because
it is not limited to Project Manager IIs; (2) the description of the action favors Plaintiff; and (3) it
fails to notify potential class members that, if they opt-in, they will be required to participate in
discovery. In her reply in support of her motion, Plaintiff states that she seeks only to notify other
employees who are Project Manager IIs. (Reply Supp. Mot. Begin “Opt-In” Notice Members Pl.
Class at 2 n.1.)

Defendant also objects to the notice because the proposed notice precludes Defendant from
communicating with class members. District courts have discretion to limit communication between
parties and class members. Williams v. Chartwell Fin. Serv. Ltd., 204 F.3d 748, 759 (7th Cir. 2000).
An order limiting Defendant’s communication with class members regarding this action will cause
Defendant no harm and generally promote a fair notification procedure.

The Portal-to-Portal Act provides that the statute of limitations for actions under the FLSA
is two years, unless the cause of action arises out of a willful violation of the FLSA; in which case,
the statute of limitations is three years. 29 U.S.C. § 255(a). Defendant has conceded that it did not

pay overtime wages to Project Manager Ils because it classifiés that position as “exempt”. (Homiston

-6-


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LINDA TAILLON, on behalf of herself)
and all other Plaintiffs similarly situated )
known and unknown,

Plaintiff,
Case No. 02 C 8882
v.
Honorable John W. Darrah
KOHLER RENTAL POWER, INC., a
wholly owned subsidiary of KOHLER
COMPANY,

DOCKETED
APR 29 2003

ww ere wwe wer

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff, Linda Taillon (“Plaintiff”), filed a four-count complaint against Defendant, Kohler
Rental Power, Inc. (“Defendant”), alleging violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000¢ et seq. (Count I); the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. and the Portal
to Portal Act, 29 U.S.C. § 251 et seg. (Count II); the Dlinois Minimum Wage Law, 820 Ill. Comp.
Stat. 105/4a (Count II); and to collect unpaid wages pursuant to the Illinois Wage Payment and
Collection Act, 820 Ill. Comp. Stat. 115 Il]. Comp. Stat. 115/1 et seq. (Count IV). Plaintiff has filed
a Motion for an Order Authorizing Notice to Similarly Situated Persons Pursuant to 29 U.S.C. §

216(b).

For the reasons that follow, Plaintiff's motion is granted.

i Ss



The requirements for a class or collective action under the FLSA are governed by 29 U.S.C.
§ 216(b). Section 216(b) provides:

An action to recover the liability prescribed in [section 206, 207 or 215(a)(3) of title

29] may be maintained against any employer (including a public agency) in any

Federal or State court of competent jurisdiction by any one or more employees for

and in behalf of himself or themselves and other employees similarly situated. No

employee shall be a party plaintiff to any such action unless he gives his consent in

writing to become such a party and such consent is filed in the court in which such

action is brought.

29 U.S.C. § 216(b).

Under § 216(b), class actions under the FLSA can only be maintained when and if. potential
claimants opt in. Allen v. Marshall Field & Co., 93 F.R.D. 438, 441 (N.D. Ill. 1982). In contrast,
class actions under Rule 23 bind all members of the class unless they opt out. This difference
between Rule 23 and § 216(b) means that Rule 23's class certification requirements do not apply to
FLSA class actions. King v. General Elec. Co., 960 F.2d 617, 621 (7th Cir. 1992); Woods v. New
York Life Ins. Co., 686 F.2d 578, 580 (7th Cir. 1982).

Rather, under the FLSA, the representative need only show that the plaintiffs are similarly
situated. 29 U.S.C. § 216(b). However, the FLSA and its regulations do not define similarly situated.
A named plaintiff can show that the potential claimants are similarly situated “by making a modest
factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of
a common policy or plan that violated the law.” Realite v. Ark Rests. Corp., 7 F. Supp. 2d 303, 306
(S.D.N.Y. 1998) (citations omitted).

District courts have the power to authorize notice of the action to potential plaintiffs. Woods,

686 F.2d at 580.

Defendant opposes notifying potential plaintiffs for the following reasons: (1) Plaintiff's

-2-