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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LISA PIAZZA, individually and on 

behalf of all others similarly situated,

Plaintiff,

v.

NEW ALBERTSONS, LP, JEWEL 

FOOD STORES, INC, and 

AMERICAN DRUG STORES, LLC

doing business as JEWEL-OSCO,

Defendants.

Case No. 20-cv-03187

Judge Mary M. Rowland

MEMORANDUM OPINION AND ORDER

Plaintiff Lisa Piazza (“Piazza”) brings a putative collective action against three

corporate affiliates, New Albertsons, LP (“New Albertsons”),

1 Jewel Food Stores, Inc.

(“Jewel Food Stores”), and American Drug Stores, LLC d/b/a Jewel-Osco (“JewelOsco,” together “Defendants”) for allegedly violating the Fair Labor Standards Act 

(“FLSA”), 29 U.S.C. § 201, et seq. and the Illinois Minimum Wage Law 820 ILCS 

105/1, et seq. (“IMWL”). Before the Court are New Albertsons’s Motion to Dismiss for 

Failure to State a Claim pursuant to Rule 12(b)(6) and Lack of Subject Matter 

Jurisdiction pursuant to Rule 12(b)(1) (Dkt. 29), and Piazza’s Motion for Conditional 

 

1 Defendant asserts that Piazza incorrectly named New Albertsons, Inc. instead of New Albertsons, 

LP. (Dkt. 30 at p. 5). “Albertsons Companies, Inc. is the parent company of Jewel-Osco and New 

Albertsons.” Id. Because Plaintiff intends to name two separate subsidiaries of Albertsons Companies, 

Inc., (Dkt. 1 at ¶ 21), as opposed to the parent company and the Jewel-Osco subsidiary, the Court 

assumes Defendant is correct that Plaintiff meant to name New Albertsons, LP. 

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Certification and Court-Authorized Notice. (Dkt. 38). For the reasons set forth below, 

New Albertsons’s motion is denied, and Piazza’s motion is granted in part. 

BACKGROUND

Piazza seeks to conditionally certify, pursuant to 29 U.S.C. 216(b), a collective

action made up of all similarly situated current and former Assistant Store Directors 

(“ASDs”) as well as comparable salaried employees with different titles, who are or 

were employed by the Defendants at Jewel-Osco grocery stores. She asserts that 

ASDs are denied appropriate compensation when they work more than 40 hours per 

week, because the Defendants incorrectly classify them as exempt from the overtime 

requirements of the FLSA and the IMWL.2

Piazza has been an ASD since February of 2019. The Complaint describes how, 

despite being classified as managers, ASDs spend most of their time performing the 

same duties as non-exempt employees including helping customers, working the cash 

register, moving products, stocking shelves, setting and resetting displays, counting 

inventory, and cleaning the store. ASDs are not responsible for hiring, firing, making 

employment-related recommendations, scheduling, or disciplining employees. 

According to Piazza they do not exercise meaningful independent judgment or 

discretion. Piazza herself is regularly required to work 50 or 60 hours a week while 

performing these tasks, and does not receive time-and-a-half pay when she does so.

 

2 All facts referenced in this Memorandum Opinion & Order come from the Complaint unless otherwise 

specified. Other pleadings and briefs will be referred to by their docket number, followed by the page

or paragraph number.

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Piazza has worked at four different Jewel-Osco stores. Based on this 

experience, she asserts that all ASDs perform the same non-managerial duties. She 

also asserts that all ASDs are “subject to the same corporate-derived policies and 

procedures; are uniformly classified as exempt from overtime; and are uniformly 

denied overtime compensation for hours worked in excess of forty (40) in a workweek.”

(Dkt. 1, ¶ 60). Finally, she asserts that all ASDs “consistently worked more than forty 

(40) hours per week.” (Dkt. 1, ¶ 61).

MOTION TO DISMISS

A. Legal Standards

New Albertsons argues that Piazza has failed to allege facts demonstrating it 

is her employer. According to New Albertsons this justifies dismissal for two reasons: 

(1) Piazza has failed to state a claim pursuant to Fed. R. Civ. Pro. 12(b)(6); and (2) 

Piazza has no standing to sue New Albertson, meaning the court lacks subject matter 

jurisdiction. Fed. R. Civ. Pro. 12(b)(1).

To overcome a Rule 12(b)(6) motion, “a complaint must ‘state a claim to relief 

that is plausible on its face.’” Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th 

Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has 

facial plausibility when the plaintiff pleads factual content that allows the court to 

draw the reasonable inference that the defendant is liable for the misconduct alleged.” 

W. Bend Mut. Ins. Co. v. Schumacher, 844 F.3d 670, 675 (7th Cir. 2016) (quoting 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). This Court “must accept as true all factual 

allegations in the [. . .] complaint and draw all permissible inferences” in Piazza’s 

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favor. Id. (quoting Bible v. United Student Aid Funds, Inc., 799 F.3d 633, 639 (7th Cir. 

2015) (internal quotation marks omitted)). However, “[w]hile a plaintiff need not plead 

‘detailed factual allegations’ to survive a motion to dismiss, she still must provide more 

than mere ‘labels and conclusions or a formulaic recitation of the elements of a cause 

of action’ for her complaint to be considered adequate under [Rule] 8.” Bell v. City of 

Chicago, 835 F.3d 736, 738 (7th Cir. 2016) (quoting Iqbal, 556 U.S. at 678).

To survive New Albertsons’ standing challenge, Piazza must show: 

(1) [that she] has suffered an ‘injury in fact’ that is (a) concrete and 

particularized and (b) actual or imminent, not conjectural or hypothetical; (2) 

[that] the injury is fairly traceable to the challenged action of the defendant; 

and (3) [that] it is likely, as opposed to merely speculative, that the injury will 

be redressed by a favorable decision.

Berger v. Nat’l Collegiate Athletic Ass’n, 843 F.3d 285, 289 (7th Cir. 2016) (citations 

omitted).

When considering a facial challenge to subject matter jurisdiction, the Rule 

12(b)(1) analysis is the same analysis used to determine whether a complaint 

adequately states a claim in accordance with Rule 12(b)(6). See Silha v. ACT, Inc., 807 

F.3d 169, 174 (7th Cir. 2015) (“when evaluating a facial challenge to subject matter 

jurisdiction under Rule 12(b)(1), a court should use Twombly–Iqbal’s ‘plausibility’ 

requirement, which is the same standard used to evaluate facial challenges to claims 

under Rule 12(b)(6)”). The party asserting federal jurisdiction has the burden of proof. 

See Farnik v. F.D.I.C., 707 F.3d 717, 721 (7th Cir. 2013).

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B. Legal Analysis

Both challenges, failure to state and claim and lack of standing, turn on 

whether Piazza has adequately alleged that New Albertsons was her employer under 

the FLSA. The FLSA defines an “employee” as “any individual employed by an 

employer.” 29 U.S.C. § 203(e). To “employ” means to “suffer or permit to work.” Id.

§ 203(g). An “employer” includes “any person acting directly or indirectly in the 

interest of an employer in relation to an employee.” In the absence of a meaningful 

statutory definition, and consistent with Supreme Court guidance to construe the 

terms “employer” and “employee” broadly, the Seventh Circuit has concluded that 

courts must examine the “economic reality” of the working relationship to assess 

whether an entity is an employer. Hollins v. Regency Corp., 867 F.3d 830, 835 (7th 

Cir. 2017).

In considering the “economic realities” of working relationships, courts consider

“the totality of the circumstances” instead of applying “formalistic labels or common 

law concepts of agency.” Villareal v. El Chile, Inc., 776 F.Supp.2d 778, 785 (N.D. Ill. 

2011) (denying summary judgment on whether the two individual owners had 

sufficient control over Plaintiff’s work environment to qualify as employers after 

applying the “economic realities” test) (citations omitted). Courts examine whether the 

defendant (1) had the power to hire and fire the employee, (2) supervised and 

controlled the employee’s work schedule or conditions of employment, (3) determined 

the rate and method of payment, and (4) maintained employment records. See, e.g., 

Zampos v. W & E Commc'ns, Inc., 970 F.Supp.2d 794, 802 (N.D. Ill. 2013) (granting 

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summary judgment to Comcast in joint employer context where court found secondary 

employer, Comcast, did not exercise sufficient control over employees of the primary 

employer, the installer). It is undisputed that an employee may have more than one 

employer. Indeed, federal regulations contemplate that entities that share common 

control over an employee may be deemed “joint employers” under the FLSA. 29 C.F.R. 

§ 791.2(a).

3 Courts apply the same economic reality test “to determine whether more 

than one employer may be held liable under the FLSA.” Babych v. Psychiatric 

Solutions, Inc., No. 09 C 8000, 2011 WL 5507374, at *7 (N.D. Ill. Nov. 9, 2011) (citing 

Reyes v. Remington Hybrid Seed Co., Inc., 495 F.3d 403, 406–08 (7th Cir. 2007)). And 

while the joint employer analysis turns on the specific facts of each case, the Seventh 

Circuit has emphasized that “for a joint-employer relationship to exist, each alleged 

employer must exercise control over the working conditions of the employee.” 

Moldenhauer v. Tazewell-Pekin Consol. Commc’ns, Ctr., 536 F.3d 640, 644 (7th Cir. 

2008) (applying FLSA standard for joint-employer to claim under the Family and 

Medical Leave Act). See Babych, 2011 WL 5507374, at *7–8 (during conditional 

certification process, court rejects argument that “corporate office” which maintained 

employee records and benefits information was not a “joint employer” with the 

hospital); Nehmelman v. Penn Nat. Gaming, Inc., 790 F. Supp. 2d 787, 796–98 (N.D. 

Ill. 2011) (denying dismissal and finding a gaming company and its wholly owned 

subsidiary both employers for purposes of standing and Rule 12(b)(6)).

 

3 In determining whether a party is a joint employer, the C.F.R. advises the Court to consider whether 

the person or entity: (i) hires or fires the employee; (ii) supervises and controls the employee’s work 

schedule or work conditions; (iii) sets the employee’s rate and method of payment; and (iv) maintains 

the employee’s employment records. 29 C.F.R. § 791.2(a)(1) (2020).

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The parties agree about the applicable law. New Albertsons asserts that Piazza 

has not alleged sufficient facts that it (as opposed to the co-defendants) exercised 

control over her working conditions. According to New Albertsons “Plaintiff worked 

exclusively in Illinois at a Jewel/Osco grocery store. She has never worked for New 

Albertsons.” (Dkt. 30 at 2). Piazza argues and alleges that New Albertsons LP qualifies 

as a joint employer because it shared control over her work environment. More 

specifically, the complaint alleges that New Albertsons was her employer as “defined 

by the FLSA 29 U.S.C. § 203(d)”; and “Defendants jointly and collectively maintained 

control, oversight, and direction over Plaintiff and other similarly situated ASDs, 

including with respect to the timekeeping, payroll, and other employment practices 

that applied to them.” (Dkt. 1, ¶31). As it must, the Court accepts these allegations as 

true. 

New Albertsons argues the allegations are conclusory and relies on the 

Supreme Court’s caution that “threadbare recitals of the elements of a cause of 

action” and other “conclusory statements” are not entitled to the same presumption 

of truth as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); (Dkt. 30 at 

7). Defendant relies on Ivery v. RMH Franchise Corp., 280 F. Supp. 3d 1121, 1129 

(N.D. Ill. 2017), an FLSA case in which two subsidiaries (and the parent company) 

that owned Applebee’s franchises were named as defendants. Ivery found that the 

complaint, containing boilerplate allegations similar to the ones here, lacked specific 

allegations about “who hired [the plaintiff], paid her, or directly supervised her work.”

Id. So although the plaintiff alleged a close relationship between the three corporate 

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entities, she had failed to properly allege that one of the subsidiaries exercised control 

over her employment. Id. In dismissing one of the defendant franchisees without 

prejudice, the Ivery court noted that plaintiff did not “suggest that this sort of basic 

information (e.g., who hired fired and controlled her work) is beyond her ken.” Id.

To the contrary, Piazza asserts that “given the information that is publicly 

available” it is not possible for “Plaintiff to allege exactly which Defendant owns 

which stores that Plaintiff worked in.” (Dkt. 35, 9).4 Reminding the Court that she 

has not had the benefit of discovery, Piazza argues that the determination of whether 

entities are joint employers should be left to summary judgment. See Watson v. 

Jimmy John’s, LLC, No. 15 C 6010, 2015 WL 8521293, at *3 (N.D. Ill. Nov. 30, 2015) 

(in a case involving restaurant franchisees and its corporate franchisor “whether an 

entity is liable under the FLSA as a joint employer is a merits issue.”); Nicks v. Koch 

Meat Co., 265 F. Supp. 3d 841, 855 (N.D. Ill. 2017) (“[g]iven the factual issues 

involved, [. . .] the joint employer question is typically addressed at the decertification 

or summary judgment stage.”); Lamarr v. Illinois Bell Tel. Co., No. 15 C 8660, 2017 

WL 2264348, at *2 (N.D. Ill. May 24, 2017) (“[t]he joint employer determination is a 

determination that involves a consideration of matters outside the pleadings and is 

premature at this juncture.”). The Court agrees that in this case it would be

premature to dismiss New Albertsons before discovery. 

 

4 The Complaint refers to a website to assert that Defendants together “own and operate approximately 

188 “Jewel-Osco” stores located in Illinois, Iowa, and Indiana.” (Dkt. 1, ¶ 24). The website explains 

that “Jewel-Osco is a vital part of Albertsons Inc., a privately held grocery company” and that at 

present, “Jewel-Osco operates 188 stores throughout the Chicagoland area, Indiana and Iowa”. 

https://www.jewelosco.com/about-us.html (last accessed January 27, 2021). It does not indicate which

subsidiary owns each location.

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Moreover, in support of her motion for conditional certification, Piazza has 

submitted Jewel-Osco’s letter offering her employment. The letter indicates that she 

may be eligible for a 401(k) Plan run by “New Albertsons Inc. (NAI)”. (Dkt. 39, Ex. 2 

at 8) (emphasis added).5 This establishes at least that an entity called New Albertsons 

Inc. (which is seemingly distinct from the parent company, Albertsons Inc.) 

maintained business records and a benefit program for Jewel-Osco employees. See

Babych, 2011 WL 5507374, at *7–8 (during conditional certification process, court 

rejects argument that “corporate office” which maintained employee records and 

benefits information was not a “joint employer” with the hospital). While it by no 

means establishes liability on the part of New Albertsons LP, this documentation 

supports Piazza’s naming New Albertsons as a Defendant. 

Cases cited by New Albertsons finding dismissal appropriate because plaintiffs 

failed to properly allege that a Defendant had exercised control sufficient to be 

considered a joint employer are easily distinguishable. In Berger v. Nat’l Collegiate 

Athletic Ass’n, 843 F.3d 285, 289 (7th Cir. 2016), the court affirmed the dismissal of 

the case on Rule 12(b)(6) grounds and rejected plaintiff’s argument that “employment 

status is an inherently fact intensive inquiry and thus should not be decided at the 

motion-to-dismiss stage.” In Berger the court determined that “as a matter of law, that 

student athletes are not employees under the FLSA, [therefore] no discovery or further 

development of the record could help [Plaintiffs].” Id, relying on Vanskike v. Peters, 

 

5 Opt-in Brenda Lorenzana also provides a “2019 Salary Review Statement” that references 

Albertsons Companies. (Dkt. 39, Ex. 2 at 9).

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974 F.2d 806, 812 (7th Cir. 1992) (affirming dismissal of inmate’s case who worked as 

a janitor, kitchen worker and gallery worker while incarcerated, because Department 

of Corrections not an employer under the FLSA). In the present case, Piazza has 

alleged that New Albertsons controlled aspects of her work. If she is unable to 

establish that following discovery, New Albertsons will have its remedy. But there is 

no basis to find “as a matter of law” that Piazza is not an employee, after all a store 

employee is a far cry from a student athlete. See Shah v. Littelfuse Inc., 2013 WL 

1828926, at *3 (N.D. Ill. Apr. 29, 2013) (dismissing a temporary employment agency 

because “[n]early every factual allegation in Shah’s Complaint pertains to [the client 

not the temporary agency]” and the temporary agency and their client were two 

unrelated corporate entities.); Richardson v. Help at Home, LLC, No. 17 CV 00060, 

2017 WL 2080448, at *3 (N.D. Ill. May 15, 2017) (where plaintiff named parent 

company, Help at Home, and direct employer, Oxford Healthcare, court dismissed 

Help at Home because Plaintiff (1) made “only the bare allegation” that she was an 

employee and (2) failed to respond to Help at Home’s argument that it did not qualify 

as a joint employer); Gunty v. Exelon Corp., 2014 U.S. Dist. LEXIS 155667, at *2 (N.D. 

Ill. Nov. 4, 2014) (dismissing Exelon Nuclear from ADA case because it “is merely a 

division of Exelon Generation. An entity with no independent legal or corporate 

identity cannot be considered a legal person, and therefore cannot be sued.”); Marijan

v. Univ. of Chicago, No. 17-CV-9361, 2018 WL 3463272, at *6 (N.D. Ill. July 18, 2018)

(in a Title VII case, finding plaintiff waived arguments about a purported joint 

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employer by failing to name them in her EEOC complaint and failing to “allege that 

[they] had control over her employment.”). 

Piazza has alleged that New Albertsons owned the stores where Piazza worked 

together with the other defendants and “maintained control, oversight, and direction 

over Plaintiff [. . .] including with respect to the timekeeping, payroll, and other 

employment practices.” (Dkt. 1, ¶ 31). That is enough to allege the New Albertsons is 

an employer for purposes of the FLSA. Defendant’s motion to dismiss is denied 

without prejudice. 

CONDITIONAL CERTIFICATION

The Court now turns to Piazza’s motion for conditional certification of the 

collective action. Defendants do not dispute that Piazza performed the tasks she 

claims to have performed, that she was classified as exempt from the overtime 

requirements of the FLSA, that she worked more than 40 hours per week, or that she 

was not paid overtime. (Dkt. 28, 2–3, 13). Instead, Defendants assert that Piazza has 

failed to make the “modest factual showing” that there was a common policy or plan 

at work that violated the law. (Dkt. 49, 15). Next Defendants argue that Piazza has 

failed to show that similarly situated employees exists. (Dkt. 49, 16). Finally, 

Defendants believe the proposed notice should be altered.

A. Legal Standard for Conditional Certification

Section 216(b) of the FLSA “gives employees the right to bring their FLSA 

claims through a collective action on behalf of themselves and other ‘similarly 

situated’ employees.” Alvarez v. City of Chi., 605 F.3d 445, 448 (7th Cir. 2010) (citing 

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29 U.S.C. § 216(b)). The FLSA does not specify how courts should handle collective 

actions, so they have “wide discretion” to determine how these suits should proceed. 

Weil v. Metal Technologies, Inc., 925 F.3d 352, 357 (7th Cir. 2019) (citing Alvarez, 605 

F.3d at 449). Courts in the Northern District of Illinois employ a two-step process. 

Step one is the conditional certification stage, and a plaintiff need only make 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.”6 Russell v. 

Ill. Bell. Tel. Co., 575 F. Supp. 2d. 930, 933 (N.D. Ill. 2008). Courts employ a “lenient 

interpretation” of the term “similarly situated” at this stage. Ivery, 280 F. Supp. 3d 

at 1133. Plaintiffs must provide “some evidence in the form of affidavits, declarations, 

deposition testimony, or other documents to support the allegations that other 

 

6 The Court declines New Albertsons’ invitation to deviate from the well-established process or 

standard to allow the parties to engage in extensive discovery based on Swales v. KLLM Transport 

Services, LLC, __ F.3d __, No. 19-60847, 2021 WL 98229 *4–7 (5th Cir. Jan. 12, 2021). (Dkt. 53). The 

Swales plaintiffs brought an FLSA challenge on behalf of truck drivers subject to independent 

contractor agreements. Id. at 4. Unlike here the “parties had engaged in substantial [. . .] discovery on 

whether Plaintiffs and potential opt-ins were similarly situated” (including 11 depositions and 19,000 

documents exchanged). The Swales court decided that because a threshold merits question (did “a 

valid independent-contractor classification [bar] application of the FLSA”) was intertwined with the 

question whether the collection action members were similarly situated, it would not defer the merits 

question until after notice was served. Id. at 7. Acknowledging the district court’s “broad, litigation 

management discretion”, the court remanded the “conditional certification” question. Id. at *9. Aside 

from the fact that Swales disregards well-established precedent in this district and its sister circuits, 

its concern about a threshold issue (independent contractor agreements) is not a factor here (a case 

focused on whether employees should be classified exempt). See Babych, 2011 WL 5507374, at *3 

(rejecting intermediate standard because “inquiry at the conditional certification stage is necessarily 

limited by the lack of detailed information about the other opt-in plaintiffs, and application of the 

stringent standard might prevent some plaintiffs from pursuing their claims.”); Sylvester v. Wintrust 

Fin. Corp., No. 12 C 01899, 2013 WL 5433593, at *3 (N.D. Ill. Sept. 30, 2013) (declining to use 

intermediate standard “given the conditional nature of this motion and the fact that the parties have 

not completed discovery”); Betancourt v. Maxim Healthcare Servs., Inc., No. 10 C 4763, 2011 WL 

1548964, at *13 (N.D. Ill. Apr. 21, 2011) (declining to apply intermediate standard because the “extent 

of discovery in this case is insufficient”); Molina v. First Line Solutions LLC, 566 F.Supp.2d 770, 786 

(N.D. Ill. 2007) (declining to skip first step where parties did not yet have all the information that 

would be available to them once they knew who would opt in to the case).

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similarly situated employees were subjected to a common policy that violated the 

law.” Pieksma v. Bridgeview Bank Mortg. Co., LLC, No. 15 CV 7312, 2016 WL 

7409909, at *1 (N.D. Ill. Dec. 22, 2016) (internal quotations omitted). Conditional 

certification is not automatic and to proceed as a collective action, plaintiffs must 

“demonstrate similarity among the situations of each plaintiff beyond simply 

claiming that the FLSA has been violated; an identifiable factual nexus that binds 

the plaintiffs together as victims of a particular violation of the overtime laws 

generally must be present.” Briggs v. PNC Fin. Servs. Grp., Inc., No. 15 CV 10447, 

2016 WL 1043429, at *2 (N.D. Ill. Mar. 16, 2016) (citations omitted). If a plaintiff can 

show that others are similarly situated, the Court may “conditionally certify the case 

as a collective action and allow notice of the case to be sent to similarly situated 

employees who may then opt in.” Grosscup v. KPW Mgmt., Inc., 261 F. Supp. 3d 867, 

870 (N.D. Ill. 2017). The merits of a case are not decided at this stage and the Court 

does not “weigh evidence, determine credibility, or specifically consider opposing 

evidence presented by a Defendant.” Bergman v. Kindred Healthcare, Inc., 949 F. 

Supp. 2d 852, 855–56 (N.D. Ill. 2013) (citation omitted). That analysis takes place 

during step two, “following the completion of the opt-in process and further 

discovery.” Russell, 575 F. Supp. 2d at 933.

B. Common Policy or Plan

Defendants argue that because “classifying employees as exempt is not 

unlawful in and of itself” and “the legality of classifying employees as exempt can 

only be determined by reviewing the job duties actually performed by the exempt 

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employees” Piazza must “show that she and the ASDs she seeks to represent are 

similarly situated with respect to their job duties.” Piazza has provided four affidavits 

signed by other ASDs, each of which demonstrates a likely case of misclassification. 

These affidavits describe conversations between the affiant and still other ASDs who 

performed similar duties. (Dkt. 39, Ex. 2, ¶ 13; Ex. 3, ¶ 16; Ex. 4, ¶ 17). Each affiant 

described the ASD duties he or she performed, between 80% and 90 % of the time as 

being the same duties as those performed by hourly workers (including cleaning the 

store, moving product, working cash register, stocking shelves, and setting displays). 

Id. This is precisely the “modest factual showing sufficient to demonstrate that 

[Piazza] and potential plaintiffs together were victims of a common policy or plan that 

violated the law.” Russell v. Ill. Bell. Tel. Co., 575 F. Supp. 2d. 930, 933 (N.D. Ill. 

2008). Piazza alleges a common policy or plan by Defendants to classify all ASDs as 

exempt from the overtime requirements of the FLSA even though ASDs were 

ineligible for that classification based on the duties they performed. That is sufficient. 

See Kujat v. Roundy’s Supermarkets Inc., No. 18 CV 5326, 2019 WL 1953107, at *3 

(N.D. Ill. May 2, 2019)

C. Similarly Situated Plaintiffs

Defendants next argue that the ASDs Piazza seeks to represent are not in fact 

“similarly situated.” (Dkt. 49, 16–19). Along with her own declaration, (Dkt. 39, Ex. 

1); Piazza submits the declaration of Brenda Lorenzana, (Dkt. 39, Ex. 2); Lauren 

Stonesifer, (Dkt. 39, Ex. 3); and, Jeffrey Vail, (Dkt. 39, Ex. 4). Each affiant worked as 

an ASD at one or more stores operated by the Defendants. (Dkt. 39, 3). Each describes 

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conditions of his or her employment that are strikingly similar to those described by 

Piazza. They all report that the role of an ASD did not vary significantly from one 

store to another, and that all stores operated using a common handbook of 

procedures. (Dkt. 39, Ex. 1, ¶ 3; Ex. 2, ¶ 9; Ex. 3, ¶ 3, 12–13; Ex. 4, ¶ 2, 10–11, 14–

17). ASDs were all salaried workers eligible for the same bonuses, (Dkt. 39, Ex. 1, ¶ 

7; Ex. 3, ¶ 6, 9; Ex. 4, ¶ 6, 7), each was scheduled to work 45 hours per week but 

required to work much more, (Dkt. 39, Ex. 1, ¶ 4–5; Ex. 2, ¶ 5, 7; Ex. 3, ¶ 5, 7; Ex. 4, 

¶ 3–4), and none were required to report the actual number of hours they worked in 

any given week, (Dkt. 39, Ex. 1, ¶ 6; Ex. 2, ¶ 4; Ex. 4, ¶ 5). They report that they 

performed the same duties, by and large, which included stocking shelves, building 

displays, cleaning the premises, counting inventory, and helping customers. (Dkt. 39, 

Ex. 1, ¶ 9–14; Ex. 2, ¶ 2, 8; Ex. 3, ¶ 4; Ex. 4, ¶ 8–9). All of these opt-in plaintiffs were 

classified as exempt from the overtime provisions of the FLSA, (Dkt. 39, Ex. 1, ¶ 7–

8; Ex. 2, ¶ 4, 13; Ex. 3, ¶ 5; Ex. 4, ¶ 6), and none received overtime pay. (Dkt. 39, Ex. 

1, ¶ 7; Ex. 2, ¶ 4; Ex. 3, ¶ 5; Ex. 4, ¶ 6).

The Defendants provide eleven affidavits, signed by different ASDs, which

purport to show that the experiences of these four ASDs were atypical. (Dkt. 49, Exs. 

1–11). Based on the information contained in these affidavits, Defendants argue that 

in fact most ASDs do perform managerial duties such as hiring, training, and 

disciplining subordinates, handling customer complaints, and communicating with 

vendors. (Dkt. 49, 6–14). They attribute the atypical experiences of Piazza, 

Lorenzana, Stonesifer, and Vail to the fact that the role of an ASD varies based on 

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the size and location of the grocery store, and the fact that even within one grocery 

store two ASDs (such as those employed by the two divisions, Jewel and Osco) often 

have different duties. (Dkt. 49, 2–3). They also claim that Piazza and the opt-in 

plaintiffs were atypical because they either moved from store to store frequently, or 

did not hold their jobs long enough to take on the managerial duties of an ordinary 

ASD. (Dkt. 49, 6–14).

These are quintessential examples of “happy camper” declarations, and the 

Court need not consider them at this stage in the litigation. See Barrett v. NorthShore 

Univ. Healthsystem, No. 17 CV 09088, 2019 WL 4412726, at *4 (N.D. Ill. Sept. 16, 

2019). Conditional certification is not the time to “weigh evidence, determine 

credibility, or specifically consider opposing evidence presented by a Defendant” so 

the Court will not attempt to determine whether the experiences of the eleven ASDs 

assembled by the Defendants are more or less typical than the experiences of the optin plaintiffs and Piazza. Bergman v. Kindred Healthcare, Inc., 949 F. Supp. 2d 852, 

855–56 (N.D. Ill. 2013) (citation omitted). After discovery the Defendants will have 

the opportunity to show that ASDs who opt in are not in fact similarly situated, and 

therefore cannot be represented by Piazza in this collective action.

Plaintiffs need only provide “some evidence in the form of affidavits, 

declarations, deposition testimony, or other documents to support the allegations that 

other similarly situated employees were subjected to a common policy that violated 

the law.” Pieksma v. Bridgeview Bank Mortg. Co., LLC, No. 15 CV 7312, 2016 WL 

7409909, at *1 (N.D. Ill. Dec. 22, 2016) (internal quotations omitted). She has done 

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so. Therefore, the Court grants Piazza’s motion in part, and conditionally certifies 

this collective action.

D. Proposed Notice

Piazza has furnished the Court with both a proposed notice and a proposal for 

the distribution of that notice. (Dkt. 39, Ex. 10; Dkt. 38, Ex. 1). She first requests that 

the Defendants be ordered to produce the “names, addresses, telephone numbers 

(including cell phone numbers), dates of employment, locations of employment, and 

work and personal e-mail addresses” of “all persons employed by Defendant as 

Assistant Store Managers in the United States at any time on or after August 26, 

2017 to the present” within seven days. (Dkt. 38, Ex. 1 at 1–2). Within 21 days of 

receiving that information, Piazza’s counsel would like to distribute notices “via U.S. 

Mail, e-mail, and text (if available)” and save the notice “in electronic format on a 

case specific website created by Plaintiff.” Piazza also requests that the Defendants 

be required to post the notice “in a conspicuous location in the back room/office in 

each of Defendants’ retail stores throughout the United States.” Id. at 2. The entire 

proposed opt-in period would be sixty days long, and Piazza would like to re-send the 

notice, once again via mail, email, and text, after 30 days to all ASDs who have not 

responded by that time.

The Defendants object to four aspects of this notice procedure.7 First, they 

object to the form and content of the notice, and ask to be allowed to meet and confer 

 

7 Defendants do not object to the class of recipients (ASDs employed from August 26, 2017 onwards), 

the 60-day opt-in period, the requirement that they post the notice in stores, the creation of a website 

for posting the notice and collecting responses, or the production of names and addresses within seven 

days of the issuance of an order by the Court. However, because the Court will be requiring more 

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with Piazza’s counsel about revisions. Second, they argue that notice should only be 

provided by mail. Third, they argue that a reminder notice should not be provided. 

And fourth, they argue that in order to protect the privacy of Jewel-Osco’s employees, 

only a third-party administrator (not Piazza’s attorneys) should receive contact 

information and consent forms. (Dkt. 49, 20–23).

1. Form and Content of the Notice

Defendants first object to the heading of the proposed notice, which reads “IN 

THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT 

OF ILLINOIS.” (Dkt. 39, Ex. 10). The Court agrees that this heading is not 

sufficiently neutral and is suggestive of “judicial endorsement of the merits of the 

action.” Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 174, (1989). While it is 

true that “[a]bsent reasonable objections by either the defendant or the Court, 

plaintiffs should be allowed to use the language of their choice in drafting the notice” 

the Defendants’ objections to this heading are reasonable. Ivery, 280 F. Supp. 3d at 

1139 (citation omitted). This Court has approved notices that identified the Court in 

the heading, but only that heading also included the name of the case. See, Jirak v. 

Abbott Labs., Inc., 566 F. Supp. 2d 845, 851 (N.D. Ill. 2008) (“Plaintiff must remove 

this heading [containing the Court’s name] from the notice or, alternatively, include 

the entire caption of the case so that it is clear the notice is a court document and not 

some type of letter from the Court.”). Therefore, the notice heading must include the 

case caption. 

 

information than the Defendants initially contemplated providing, they will have 30 days to produce 

the information described below.

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Defendants next ask that the notice include language informing “opt-ins that 

they may have to pay for Defendants’ fees and costs in the event their claims are 

unsuccessful.” Although the Defendants cite one instance in which such language was 

approved, district courts in this circuit do not generally require that language. 

Compare Garcia v. Elite Labor Serv., Ltd., No. 95 C 2341, 1996 WL 33500122 (N.D.

Ill. July 11, 1996) (including possibility of opt-in plaintiffs being responsible for 

attorneys’ fees in a notice) with Boltinghouse v. Abbott Labs., Inc., 196 F. Supp. 3d 

838, 843 (N.D. Ill. 2016) (noting the dangers of chilling participation and not 

requiring this language because “Defendant is a large corporation with tens of 

thousands of employees, and the odds of a fee award to prevailing defendants under 

216(b) are long”) and Slaughter v. Caidan Mgmt. Co., LLC, 317 F. Supp. 3d 981, 993 

(N.D. Ill. 2018) (noting this split and collecting cases). 

Because this language would have an undeniable chilling effect on opt-ins and 

Piazza’s counsel have stipulated that they will bear the costs if they do not prevail,

(Dkt. 51, fn. 11), the Court will not require this language to be added to the notice.

2. Delivery of the Notice

Defendants argue that Piazza should not be permitted to give notice by email 

(personal or business) or text message. Email notice has become ubiquitous and the 

Court will allow it. See, for example, Kujat v. Roundy’s Supermarkets, Inc., et al., No. 

18 CV 5326, 2019 WL 1953107 (N.D. Ill. May 2, 2019) (providing plaintiffs with 

telephone numbers and email addresses); Bigger v. Facebook, 375 F. Supp. 3d 1007, 

1025 (ordering the production of email address, telephone number, and other 

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information) (partially reversed and remanded on other grounds); Ruffolo v. LaSalle 

Grp., Inc., No. 18 CV 3305, 2019 WL 978659 (N.D. Ill. Feb. 28, 2019) (ordering the 

production of both email address and telephone numbers). Defendants are ordered to 

produce both the business and personal email addresses of the ASDs included in this 

collective action.

Notification via text message, however, is not approved. Piazza provides no 

examples of cases from the Seventh Circuit in which text messages were sent as a 

primary means of giving notice. See Slaughter v. Caidan Mgmt. Co., LLC, 317 F. 

Supp. 3d 981, 994 (N.D. Ill. 2018) (“In the Court's view, most people do not expect to 

receive unsolicited business communications via text message.”); Muir v. Guardian 

Heating & Cooling Servs., No. 16 CV 9765, WL 959028 (N.D. Ill. Mar. 13, 2017) 

(Denying the use of text messages to contact every possible collective action member); 

Haugen v. Roundy’s Illinois, LLC d/b/a Mariano’s, No. 18 CV 7297 (N.D. Ill.) 

(citation not yet available, order at Dkt. 54) (allowing notice via text message only 

when emails and first-class mailings are undeliverable); DePyper v. Roundy’s 

Supermarkets, Inc. et al, No. 20 CV 02317 (N.D. Ill.) (citation not yet available, order 

at Dkt. 37) (same).

3. Reminder Notices

Likewise, Piazza’s request for permission to send reminder notices is denied. 

See Hudgins v. Total Quality Logistics, LLC, No. 16 CV 7331, 2016 WL 7426135, at 

*18 (N.D. Ill. 2016) (absent evidence that email and first class mail are ineffective, 

reminders would be “unnecessary and overly intrusive” and “could be interpreted as 

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encouragement by the Court to join the lawsuit”); Slaughter v. Caidan Mgmt. Co., 

LLC, 317 F. Supp. 3d 981, 992 (N.D. Ill. 2018) (same).8 The Court is sensitive to 

Piazza’s concerns about the global pandemic and the U.S. Postal Service’s budgetary 

challenges, but by approving the use of both personal and business email addresses, 

the Court intends to alleviate those concerns without the need for reminder notices.

4. Confidentiality of Contact Information 

Finally, Defendants request that all contact information and consent forms be 

kept from Piazza’s attorneys, and that access be granted only to their third-party 

administrators. Defendants argue that this is necessary to keep Piazza’s attorneys 

from engaging in additional “contact or solicitation.” (Dkt. 49, 23). This request is 

denied. The personal information provided will be subject to a protective order. 

Counsel are to confer and submit an agreed protective order within 10 days of this 

order. 

CONCLUSION

For the reasons stated above, Plaintiffs’ motion for step-one notice of their

FLSA collective action is granted as follows:

(1) Defendants shall produce the names, dates of employment, locations of 

employment, last known addresses, personal email addresses, and corporate email 

addresses of the following “Collective Members”: Defendants’ current and former 

ASDs who were employed during any week from August 26, 2017 through the present 

at any of Defendants’ locations. (“Employee Information”).

 

8 Piazza cites two cases in which the Court reached the opposite conclusion: Kujat v. Roundy’s 

Supermarkets, Inc., et al., No. 18 CV 5326, 2019 WL 1953107 (N.D. Ill. May 2, 2019); Haugen v. 

Roundy's Illinois, LLC d/b/a Mariano’s, No. 18 CV 7297 (citation not yet available, order at Dkt. 51). 

These requests were all unopposed and are therefore unpersuasive. 

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(2) Defendants shall provide the Employee Information in an electronic 

form that can be used by the Plaintiffs in delivering the Court-approved Notice. If the 

information is not stored electronically, Defendants shall provide it in written form. 

This information must be produced to Plaintiffs within 30 days of the entry of this 

Order. 

(3) The Court authorizes that the Notice and Consent Form submitted as 

Exhibit 10 to Plaintiffs’ motion (Dkt. 39), may be sent to those individuals whose 

names are being provided as required by this Order along with a self-addressed, 

postage paid return envelope for U.S. Postal Mailing. The Notice must be modified 

consistent with this Order. The Notice and Consent forms shall be mailed by first 

class mail and may also be sent electronically in the manner described above.

(4) Notice may be posted on a website maintained by Plaintiff’s counsel or 

the third-party administrator. Notice must be posted in a conspicuous location in the 

back room, office, or similar employee-accessible common area of each of the 

Defendants’ grocery stores.

(5) Opt-in collective members are given 60 days after the date the Notice 

and Consent forms are mailed to file a Consent to Join form opting-in to this litigation

(6) A Consent to Join that is postmarked on the deadline is considered 

timely. Consents received by mail without postmarks are considered timely if 

received within five business days of the deadline. Plaintiffs shall provide the Court 

with a notice indicating the date on which the Notice forms were initially mailed. 

(7) Within 10 days after the close of the Opt-In Period, Plaintiffs’ counsel 

will file the consent forms for the Opt-In Plaintiffs. 

(8) Within 21 days after the close of the opt-in period, the Parties shall 

confer pursuant to Rule 16(b) and prepare an Initial Status Report as provided for on 

the Court’s website.

Dated: February 3, 2021

E N T E R:

MARY M. ROWLAND

United States District Judge

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