Case: 1:16-cv TSB Doc #: 2 Filed: 09/27/16 Page: 1 of 19 PAGEID #: 11

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1 Case: 1:16-cv TSB Doc #: 2 Filed: 09/27/16 Page: 1 of 19 PAGEID #: 11 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION JEREMY HAMM, et al. for himself : and others similarly situated : : Plaintiff, : Case No.: 1:16-cv-935 : v. : JUDGE BLACK : SOUTHERN OHIO MEDICAL : CENTER, : Defendant. : PLAINTIFF'S PRE-DISCOVERY MOTION FOR CONDITIONAL CLASS CERTIFICATION AND COURT-SUPERVISED NOTICE TO POTENTIAL OPT-IN PLAINTIFFS PURSUANT TO 29 U.S.C. 216 (b) Plaintiff Jeremy Hamm ( Plaintiff Hamm or Named Plaintiff ), on behalf of himself and all other similarly situated, respectfully moves, pursuant to Section 16 (b) of the Fair Labor Standards Act ( FLSA ), 29 U.S.C. 216(b), for entry of an order from this Court: Support. (1) Conditionally certifying the proposed collective FLSA class as defined herein; (2) Implementing a procedure whereby Court-approved Notice of Plaintiff s FLSA claims is sent (via U.S. Mail and ) to: All current and former Security Officers employed by Defendant who, during the previous three years, worked more than forty hours in any workweek but were not properly compensated for all of overtime hours worked under the FLSA because of Defendant's automatic 30-minute meal deduction policy. (3) Requiring Defendant to, within fourteen (14) days of this Court s order, identify all potential opt-in plaintiffs by providing a list in electronic and importable format, of the names, addresses, and addresses of all potential opt-in plaintiffs who worked for Defendant at any time between September 19, 2013 and the present. The relief sought is appropriate for the reasons discussed in the attached Memorandum in 1

2 Case: 1:16-cv TSB Doc #: 2 Filed: 09/27/16 Page: 2 of 19 PAGEID #: 12 Respectfully submitted, /s/greg Mansell Greg R. Mansell ( ) (Greg.Mansell@Ohio-EmploymentLawyer.com) Carrie J. Dyer ( ) (Carrie.Dyer@Ohio-EmploymentLawyer.com) Mansell Law, LLC 1457 S. High St. Columbus, OH Ph: (614) Fax: (513) Counsel for Plaintiff 2

3 Case: 1:16-cv TSB Doc #: 2 Filed: 09/27/16 Page: 3 of 19 PAGEID #: 13 MEMORANDUM IN SUPPORT OF PLAINTIFF'S PRE-DISCOVERY MOTION FOR CONDITIONAL CLASS CERTIFICATION AND COURT-ORDERED SUPERVISED NOTICE TO POTENTIAL OPT-IN PLAINTIFFS PURSUANT TO 29 U.S.C. 216(b) I. INTRODUCTION This is an action for unpaid overtime wages brought pursuant to the Fair Labor Standards Act ( FLSA ) and filed as a collective action. Plaintiff Hamm filed this action on September 19, 2016, challenging Defendant Southern Ohio Medical Center s ( Defendant or SOMC ) failure to pay the Plaintiff Hamm and similarly situated individuals for all wages earned, including overtime compensation at the rate of one and one half times their respective regular rates for the hours worked in excess of forty (40) hours in a workweek. (See Complaint, Doc. No. 1) Plaintiff Hamm, individually and on behalf of all others similarly situated, respectfully requests that this Court: (1) conditionally certify this collective action for unpaid overtime under Section 16(b) of the FLSA; (2) approve Plaintiff s proposed Court-supervised Notice to the Putative Class members; 1 and (3) order Defendant to identify potential opt-in plaintiffs ( Potential Opt-Ins ) within fourteen (14) days of the entry of the order by providing a list in electronic and importable format, of all individuals who worked for Defendant in the position of Security Officer from September 19, 2013 through the present. For each such individual, Defendant should include the individual s name, last known address, telephone number(s), address(es), and dates of employment within fourteen (14) days of the entry of the order. In addition, Plaintiffs ask this Court to approve an opt-in period of 45 days. 1 The proposed Notice is attached as Exhibit A. 3

4 Case: 1:16-cv TSB Doc #: 2 Filed: 09/27/16 Page: 4 of 19 PAGEID #: 14 Plaintiff s proposed FLSA Class is defined as: See Doc. No. 1, 28. All current and former Security Officers employed by Defendant who, between September 19, 2016 and the present, worked more than forty hours in any workweek but were not properly compensated for all overtime hours worked under the FLSA because of Defendant's automatic 30-minute meal deduction policy. Without the requested Court-ordered notice, many potential plaintiffs will never learn about this case and about their right to participate; and as a result, their viable claims will silently slip away under the FLSA s statute of limitations. Plaintiff Hamm and similarly situated individuals that are Potential Opt-Ins, who have yet to receive Notice of their eligibility to join this lawsuit, will be collectively referred to as the Putative Class or Putative Class Members. II. FACTUAL BACKGROUND Defendant SOMC employs Security Officers, including Plaintiff Hamm, at its facility located at th St, Portsmouth, Ohio Upon information and belief, SOMC employs approximately 20 Security Officers at any given time. (Compl. 12) Plaintiff Hamm bring this action on behalf of himself and all other similarly situated current or former Security Officers employed by Defendant during the previous three years to recover unpaid overtime wages owed to them by Defendant as a result of Defendant s FLSA violation. Plaintiff Hamm s declaration is offered in support and is attached hereto as Exhibit B. Plaintiff Hamm alleges that over the course of the previous three years, Defendant has maintained an automatic meal deduction policy whereby it automatically deducts 30-minutes from its Security Officers compensable time each shift when it knew or should have known that the Security Officers did not receive meal breaks, received interrupted meal breaks, and/or otherwise continued to perform substantial duties for SOMC s benefit during the meal times. 4

5 Case: 1:16-cv TSB Doc #: 2 Filed: 09/27/16 Page: 5 of 19 PAGEID #: 15 (See Compl. 28, Hamm Declaration 12-13, 18) When Security Officers arrive at Defendant s facility for their shifts, they clock-in and clock-out using an office computer or swiping their name badge. At all times relevant herein, after the Security Officers clock-in, they are given an inside network phone and a two-way radio. (Compl , Hamm Declaration 7-8) Defendant requires that Security Officers have their phone and radio in their possession for the entire duration of their shift, including during meal breaks. (Compl. 17, Hamm Declaration 9, 11). Security Officers are told they are not permitted to leave Defendant s facility during the 30-minute meal break "because there is rarely a planned emergency that agrees to wait until an officer gets back from lunch " and they are required to respond in a timely manner to every call received on their radio and/or phone during the 30-minute meal breaks. (Compl. 20, Hamm Declaration 14; See also August 31, from McKinnon, attached as Exhibit B-1; and General Orders Policy, 23, 24, attached as Exhibit B-2) The Putative Class Members are similarly situated for purposes of Section 16(b) conditional certification because: (1) the Putative Class Members worked for the same enterprise as that term is defined by the FLSA; (2) the Putative Class Members performed job duties integral and indispensable to Defendant's business; and (3) the Putative Class Members were subject to the same 30-minute auto-deduct meal break policy that deprived and continues to deprive the Security Officers of overtime wages for all hours worked in excess of 40 per workweek. Because there numerous other Security Officers employed by Defendant who may not be aware of the pending lawsuit or their rights to proceed in this forum, Notice to the Potential Opt- Ins is required to allow them to make an informed decision as to whether to assert their right to participate in this case. Further, because the recovery for each Potential Opt-In is eroding daily, 5

6 Case: 1:16-cv TSB Doc #: 2 Filed: 09/27/16 Page: 6 of 19 PAGEID #: 16 this Court should authorize Notice as soon as possible. III. LAW AND ARGUMENT A. THE FLSA AUTHORIZES COLLECTIVE ACTIONS AND NOTICE TO SIMILARLY SITUATED EMPLOYEES. Section 216 (b) of the Fair Labor Standards Act provides: An action... may be maintained against any employer...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 become 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 sought. 29 U.S.C. 216(b). Importantly, unlike a Rule 23 class action, the commencement of a representative action under 216(b) does not toll the running of the 2 to 3 year statute of limitations period applicable to FLSA actions for similarly situated plaintiffs. See 29 U.S.C. 256(b); Stout v. Remetronix, Inc., 2013 U.S. Dist. LEXIS , *6, 2013 WL (S.D. Ohio Aug. 9, 2013) (citing Cahill v. City of New Brunswick, 99 F. Supp. 2d 464, 479 (D. N.J. 2000)). Under the established standards governing court-supervised notice to similarly-situated employees, this motion should be granted. At the conditional certification stage of the two-tiered approach to FLSA notice, the Plaintiff s burden is simply to show the existence of other employees who appear to be similarly-situated in both their job duties and the employer s treatment of their entitlement to overtime pay. See, e.g., Theissen v. General Electric Cap. Corp., 267 F.3d 1095, 1103 (10th Cir. 2001); Mooney v. Aramco Services Co., 54 F3d 1207, 1214 (5th Cir. 1995). This determination is distinct from the merits of the named plaintiffs claims. Theissen, 267 F.3d at

7 Case: 1:16-cv TSB Doc #: 2 Filed: 09/27/16 Page: 7 of 19 PAGEID #: 17 Here, Security Officers employed by Defendant at the Portsmouth, Ohio facility are paid on an hourly basis, and are all subject to Defendant s automatic meal deduction policy whereby 30 minutes is automatically deduced from the Security Officers compensable time each shift. (See Compl. 18, 28; Hamm Declaration 4, 12). Indeed, the written policy acknowledges that employees will not be compensated for interrupted or shortened meal periods. Instead, the written policy states, Employees will not be compensated for their lunch break unless they are required by their supervisor to remain at their workstation while eating. (See Lunch Breaks Policy, Section II, E, attached as Exhibit B-3) The Security Officers are similarly situated in their job duties and are treated the same by Defendant in theirs of their entitlement to overtime pay. Due to Defendant s auto-deduct meal break policy, Security Officers are not paid an overtime premium for all hours worked in excess of 40 in a workweek. Thus, all Security Officers are entitled to receive notice of this action. B. THE SIXTH CIRCUIT APPLIES A LENIENT STANDARD WHEN CONDITIONALLY CERTIFYING A FLSA COLLECTIVE ACTION. In light of that remedial purpose and the necessity for notice to effectuate a collective action, a liberal standard is used to measure whether potential recipients of the notice are similarly situated to the named Plaintiffs. See, e.g., Hipp v. Liberty National Life Insurance Co., 252 F.3d 1208, 1218 (11th Cir. 2001) (interpreting FLSA language borrowed by the Age Discrimination in Employment Act). As the FLSA language dictates, the burden on the named Plaintiff is to show similar, rather than identical, positions to those being sent notice. To join the collective action, the statute only requires that the employees be similarly situated, not identically situated. Stout, 2013 U.S. Dist. LEXIS , *9 (citing Hasken v. City of Louisville, 213 F.R.D. 280, 282 (W.D. Ky. 2003)). Accord Pritchard v. Dent Wizard Intern. 7

8 Case: 1:16-cv TSB Doc #: 2 Filed: 09/27/16 Page: 8 of 19 PAGEID #: 18 Corp., 210 F.R.D. 591, 595 (S.D. Ohio 2002); Lemmon v. Harry & David Operations, Inc., 2016 U.S. Dist. LEXIS 11810, *6 (S.D. Ohio Jan. 20, 2016). When determining whether a lawsuit may proceed as a collective action, courts typically use a two-tiered certification process. Harrison v. McDonald s Corp., 411 F.Supp.2d 862, 864 (S.D. Ohio 2005). In recognition of the judicial efficiencies and cost-saving benefits of collective actions, courts in the Sixth Circuit follow the two-step approach when deciding whether the named plaintiffs are similarly situated for the purpose of certifying a collective action. See O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, (6th Cir. 2009) (district courts follow a two-stage certification process to determine whether the opt-in plaintiffs and lead plaintiffs are similarly situated); see also Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006) (holding that [t]he court must first consider whether plaintiffs have shown that the employees to be notified are, in fact, similarly situated ) The Notice Stage The first stage, known as the notice stage, occurs at the beginning of discovery. Shipes v. Amurcon Corp., 2012 U.S. Dist. LEXIS at *9 (E.D. Mich. 2012) (citing Comer, 454 F.3d at 546); see also Lacy v. Reddy Elec. Co., 2011 U.S. Dist. LEXIS , *5 (S.D. Ohio 2011) (J. Rice). At this stage, the court determines whether the suit should be conditionally certified as a collective action so that potential opt-in plaintiffs can be informed of the pending lawsuit and of their right to participate. Comer, 454 F.3d at ; see also Lacy, 2011 U.S. Dist. LEXIS at *6 ( Conditional certification is meant only to aid in 2 See also where this District Court has routinely conditionally certified FLSA cases. See, e.g., Lacy v. Reddy Elec. Co., 2011 U.S. Dist. LEXIS (S.D. Ohio 2011)(J. Rice); Snelling v. ATC Healthcare Servs., 2012 U.S. Dist. LEXIS , *7 (S.D. Ohio 2012); Snodgrass v. Bob Evans Farms, LLC, 2013 U.S. Dist. LEXIS , *4 (S.D. Ohio 2013); O Neal v. Emery Fed. Credit Union, 2014 U.S. Dist. LEXIS 27408, *6 (S.D. Ohio 2014); Petty v. Russell Cellular, Inc., 2014 U.S. Dist. LEXIS 42185, *2 (S.D. Ohio 2014); Cornell v. World Wide Bus. Servs. Corp., 2014 U.S. Dist. LEXIS , *2 (S.D. Ohio 2014); Castillo v. Morales, Inc., 2014 U.S. Dist. LEXIS (S.D. Ohio 2014). 8

9 Case: 1:16-cv TSB Doc #: 2 Filed: 09/27/16 Page: 9 of 19 PAGEID #: 19 identifying similarly situated employees. ). This case is currently in the notice stage because the instant 216(b) motion was filed before discovery has commenced. (a) Burden of Proof The threshold issue to conditional certification at the notice stage is whether the plaintiffs have successfully demonstrated a class of similarly situated potential plaintiffs. Lacy, 2011 U.S. Dist. LEXIS at *5 (citing Comer, 454 F.3d at 546). At this stage, the court does not conclude whether a class of similarly situated plaintiffs actually exists; rather, it determines whether the plaintiffs have made a modest factual showing of similar situation which justifies sending notice to potential plaintiffs of the suit. Id. (quoting Pritchard v. Dent Wizard Int l, 210 F.R.D. 591, 595 (S.D. Ohio 2002); see also Lewis, et al. v. Huntington Nat. Bank, 789 F. Supp. 2d 863, 867 (S.D. Ohio 2011) ( Plaintiffs must only make a modest showing that they are similarly situated to the proposed class of employees ). Individuals are similarly situated for purposes of the FLSA if their causes of action accrued in approximately the same manner as those of the named plaintiffs. Castillo v. Morales, Inc., 2014 U.S. Dist. LEXIS , *6 (S.D. Ohio Sept. 4, 2014). [T]he plaintiff must show only that his position is similar, not identical to the positions held by the putative class members. Comer, 454 F.3d at (quoting Pritchard, 210 F.R.D. at 595); see also Cornell v. World Wide Bus. Servs. Corp., 2014 U.S. Dist. LEXIS , *7 (S.D. Ohio Aug. 27, 2014) (stating that plaintiffs claims and damages do not have to be identical. ). Once a court determines a case is appropriate for conditional class certification, it approves notice to putative collective group members. The Supreme Court has held that the benefits to the judicial system of collective actions depend upon employees receiving accurate 9

10 Case: 1:16-cv TSB Doc #: 2 Filed: 09/27/16 Page: 10 of 19 PAGEID #: 20 and timely notice concerning the pendency of the collective action, so that they can make informed decisions about whether to participate. Hoffmann La Roche, 493 U.S. at 170. (b) Evidence Typically Accepted to Meet the Similarly Situated Test To secure conditional certification of their collective action, plaintiffs may rely on pleadings and supplementary materials such as affidavits and other supporting documents. See Shipes v. Amurcon Corp., 2012 U.S. Dist. LEXIS at *10 (E.D. Mich. Mar. 23, 2012) (noting that at this stage courts typically conditionally certify a representative class because the court has only minimal evidence before it the pleadings and affidavits submitted by the parties ). Courts in the Southern District of Ohio, when evaluating whether employees are similarly situated, consider; [w]hether potential plaintiffs were identified; whether affidavits of potential plaintiffs were submitted; whether evidence of a widespread discriminatory plan was submitted, and whether as a matter of sound class management, a manageable class exists. Lewis at 868, citing Heaps v. Safelite Solutions, LLC., 2011 U.S. Dist. LEXIS 40089, at *4 (S.D. OH Apr. 5, 2011). Significantly, courts in the Sixth Circuit have rejected any requirement that plaintiffs demonstrate interest by potential opt-in plaintiffs in order to obtain court-facilitated notice. For example, in Douglas v. GE Energy Reuter Stokes, the district court found that plaintiffs had met their initial burden of showing that there were other similarly situated individuals based upon the affidavits of the named plaintiff and a second individual. Douglas v. GE Energy Reuter Stokes, Case No. 1:07-cv-077, 2007 WL at *6 (N.D. Ohio Apr. 30, 2007). The Douglas affidavits alleged that the plaintiffs job responsibilities were similar to those of their co-workers and were found sufficient to warrant conditional certification as a collective action. See also Lacy, 2011 U.S. Dist. LEXIS at *5 ( No minimum number of similarly-situated 10

11 Case: 1:16-cv TSB Doc #: 2 Filed: 09/27/16 Page: 11 of 19 PAGEID #: 21 employees is required for conditional certification. ); Sisson v. OhioHealth Corp., 2013 WL (S.D. Ohio 2013) (motion for conditional certification was granted when it was supported by one declaration). This Court should conditionally certify an FLSA class consisting of all Defendants current and former Security Officers employed within the previous three years who have been subjected to Defendant s 30 minute auto-deduct meal period policy, and approve notice to these individuals. Defendant will not be unduly prejudiced by informing those current and former employees of their possible claim and forum. As a practical matter, however, those current and former Security Officers will be foreclosed from participating in this case unless they receive notice. 2. The Decertification Stage The second stage, which occurs after discovery is complete, is reached if the defendant moves to decertify the class. See e.g., Wlotkowski v. Michigan Bell Tel. Co., 267 F.R.D. 213, 217 (E.D. Mich. 2010) (the final certification decision is made at the second stage, after all of the opt-in forms have been received and discovery has concluded ). Courts generally apply a higher level of scrutiny at the second stage because the parties have developed a more complete factual record through discovery. Id. If the claimants are similarly situated, the district court allows the representative action to proceed to trial. If the claimants are not similarly situated, the district court decertifies the class, and the opt-in plaintiffs are dismissed without prejudice. Douglas, 2007 WL at *4; see also Shipes v. Amurcon Corp., 2012 U.S. Dist. LEXIS at *12 (E.D. Mich. Mar. 23, 2012). Accordingly, Defendant s rights are not prejudiced by early notice and conditional certification, because it will have the opportunity to move for decertification upon completion of 11

12 Case: 1:16-cv TSB Doc #: 2 Filed: 09/27/16 Page: 12 of 19 PAGEID #: 22 discovery. See Myers et al. v. Marietta Memorial Hospital et al., Case No. 2:15-CV-2956, 2016 U.S. Dist. LEXIS , (S.D. Ohio August 17, 2016) (J. Marbley) C. WHEN DECIDING MOTIONS FOR CONDITIONAL CERTIFICATION, COURTS IN THE SIXTH CIRCUIT DO NOT EVALUATE THE MERITS OF THE CLAIMS OR INDIVIDUALIZED ALLEGATIONS OR DEFENSES. Consistent with the purpose of 216(b) Notice, it is well established in the Southern District of Ohio, that in assessing whether plaintiff has met his burden to conditionally certify a class, the Court does not consider the merits of the claims, resolve disputes of fact, or evaluate the credibility of the witnesses or testimony. Struck v. PNC Bank N.A., 2013 U.S. Dist. LEXIS 19444, *12, 2013 WL (S.D. Ohio Feb. 13, 2013) (citing Swigart v. Fifth Third Bank, 288 F.R.D. 177, 214 (S.D. Ohio 2012) ( At the notice stage, district courts within the Sixth Circuit typically do not consider the merits of the plaintiff s claims, resolve factual disputes, make credibility determinations, or decide substantive issues. ) and Lacy v. Reddy Elec. Co., 2011 U.S. Dist. LEXIS , *8-9, 2011 WL (S.D. Ohio Dec. 9, 2011) ( Requiring any more factual support from Plaintiff at this early stage, or weighing competing factual assertions, would intrude improperly into the merits of the action, essentially imposing a burden upon Plaintiff to prove the factual predicates of his claim as a precondition to obtaining preliminary conditional certification.... Therefore the Court does not intend to address Defendants arguments concerning the merits of Plaintiffs claims in the context of this decision. ). See also Creely v. HCR Manorcare, Inc., 789 F. Supp. 2d 819 (N.D. Ohio 2011) ("[S]imilarly situated... does not touch upon the merits of plaintiffs' claims."); Jimenez v. Lakeside Pic-N-Pac, LLC, No. 1:06-CV- 456, 2007 U.S. Dist. LEXIS 91989, 2007 WL (W.D. Mich. Dec. 14, 2007) ( It is not the role of the Court at this stage of the proceedings to decide the case on the merits. ). 12

13 Case: 1:16-cv TSB Doc #: 2 Filed: 09/27/16 Page: 13 of 19 PAGEID #: 23 It is not the role of the Court at this stage of the proceedings to decide the case on the merits. To do so at the juncture, when Plaintiffs have conducted little or no discovery, would be unfair. Lacy v. Reddy Elec. Co., 2011 U.S. Dist. LEXIS , *7-8 (S.D. Ohio Dec. 9, 2011) (internal citations omitted). Thus, this Court should refuse to consider any argument from Defendant SOMC at this stage regarding the merits of the case when determining whether to conditionally certify Plaintiff s proposed class. D. THIS COURT IS AUTHORIZED TO ISSUE NOTICE TO POTENTIAL OPT- IN PLAINTIFFS AND SHOULD DO SO IMMEDIATELY. Court facilitated notice is appropriate in this case. This lawsuit provides the best mechanism for informing the Potential Opt-Ins of their rights and providing them a forum to seek a remedy. Such collective adjudication in this case will avoid the proliferation of individual lawsuits that could result in disparate rulings and wasting of judicial resources. Requiring the Putative Class Members to file separate cases in this district court would not be an economic use of resources under the circumstances. Plaintiff Hamm has established that Security Officers employed by Defendant are similarly situated and meet his burden for the purpose of conditional certification under 216(b) of the FLSA. The Putative Class Members in this case are all non-exempt current or former Security Officers employed by Defendant within the previous three years and are similarly situated within the meaning the 29 U.S.C. 216(b). Plaintiff Hamm has submitted facts in the Complaint and his Declaration alleging that Defendant failed to properly pay him and other Security Officers all overtime wages because it utilized a 30-minute automatic meal deduction policy when Defendant knew or should have known that the employees did not receive meal breaks, received interrupted meal breaks, and/or otherwise continued to perform substantial duties for SOMC s benefit during the meal times. Plaintiff Hamm and similarly situated Potential 13

14 Case: 1:16-cv TSB Doc #: 2 Filed: 09/27/16 Page: 14 of 19 PAGEID #: 24 Opt-Ins performed job duties integral and indispensable to Defendant s business and were all subject to the same policy that uniformly denied them proper overtime pay by way of the 30- minute auto-deduct meal break policy. Because the Plaintiff Hamm is bringing this Motion at the notice stage of conditional certification, the Court should conditionally certify the Putative Class based on the allegations as set forth in his Complaint and his attached Declaration. E. THE COURT SHOULD APPROVE NOTICE TO BE PROVIDED TO SECURITY OFFICERS EMPLOYED BY DEFENDANT AT ANY TIME WITHIN THE THREE YEARS PRECEDING THE COMMENCEMENT OF THIS ACTION. The period of employment for current and former Security Officers, September 19, 2013 to date, has been set based upon the date this action was commenced and the FLSA statute-oflimitations. (See Complaint, Doc. No. 1, filed September 19, 2016). The FLSA has a two-year statute of limitations, subject to extension to three years for a willful violation. 29 U.S.C An FLSA violation is willful if the employer either knew or showed reckless disregard for whether its conduct was prohibited by the Act. McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988). Plaintiff Hamm alleges that Defendant s violation was a willful one, in that Defendant was aware that the Security Officers should have been paid overtime compensation for all hours worked in excess of 40 hours per week. Defendant knew or should have known that Security Officers continued to perform substantial duties for Defendant during the 30-mimute meal break periods, and that Defendant s auto-deduct policy violated the FLSA. (Compl. 28) Moreover, [i]t is well settled law in our Circuit that an employer who claims to be exempt from the requirements of the Fair Labor Standards Act has the burden of proving it qualifies under the terms of a specific exemption. Chao v. Double JJ Resort Ranch, 375 F.3d 393, 396 (6th Cir. 2004). [E]xemptions from the Act are to be narrowly construed against the 14

15 Case: 1:16-cv TSB Doc #: 2 Filed: 09/27/16 Page: 15 of 19 PAGEID #: 25 party asserting them and their application limited to those establishments plainly and unmistakably within their terms and spirit. Homemakers Home & Health Care Servs., Inc. v. Carden, 538 F.2d 98, 101 (6th Cir.1976) (internal citations omitted). Accord Corning Glass Works v. Brennan, 417 U.S. 188, (1974); Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960); Michigan Ass'n of Governmental Employees v. Michigan Dep't of Corrections, 992 F.2d 82, 83 (6th Cir.1993). At this notice stage of the two-tiered FLSA approach, satisfaction of the burden to show this is too questionable for limiting notice to the shorter statutory time period of two years. F. THE COURT SHOULD APPROVE PLAINTIFF'S PROPOSED NOTICE AND GRANT A 45 DAY OPT-IN PERIOD FOR ADDITIONAL PLAINTIFFS TO JOIN THIS LITIGATION. Plaintiff Hamm requests that the Court authorize him to send the attached Proposed Notice to all individuals in the Putative Class. (See Exhibit A) The Proposed Notice is timely, accurate, and informative, and therefore should be approved. Hoffman-La Roche, 493 U.S. at 172. Specifically, Plaintiffs request that the Court grant them permission to disperse notice in two ways: (1) by ordinary mail, and (2) by electronic mail (to former employees only). Accurate and timely notice regarding the pendency of the action promotes judicial economy because it discourages class members from filing numerous identical suits and instead allows them to pursue their claims in one case where the same issues of law and fact are already being addressed. Swigart v. Fifth Third Bank, 276 F.R.D. 210, 214, 2011 U.S. Dist. LEXIS , (S.D. Ohio August 31, 2011) (citing Hoffmann La Roche Inc. v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989)). Plaintiffs request the ability to send the Courtauthorized notice to current and former putative class members by regular mail, and to former employees by electronic mail. Last known addresses for former employees are far less accurate, 15

16 Case: 1:16-cv TSB Doc #: 2 Filed: 09/27/16 Page: 16 of 19 PAGEID #: 26 and using electronic mail to disperse notice will increase the likelihood that putative class members will receive notice. This method has been approved by this Court on numerous occasions. See e.g., Swigart, 276 F.R.D. at 215 ( The Court finds that permitting transmission by mail, and additionally by to former Fifth Third MLOs only, both appropriately safeguards the privacy of individuals not currently a party to the case and helps ensure that all potential plaintiffs receive notice of their right to join this lawsuit. ); Struck v. PNC Bank N.A., 2013 U.S. Dist. LEXIS 19444, *21 (S.D. Ohio Feb. 13, 2013) (rejecting defendant s argument that sending notice by electronic mail to former employees would invade their privacy, and holding that ensuring former employees receive notice of their rights to join the lawsuit outweighs any privacy concerns); Lutz v. Huntington Bancshares, Inc., 2013 U.S. Dist. LEXIS 56477, *19-20 (S.D. Ohio Apr. 19, 2013) (noting that [b]y allowing notice to former employees now, the Court hopes to avoid the added step of having to resend notice in the event that a former employee s last known home address proves to be inaccurate. ); Lemmon, 2016 U.S. Dist. LEXIS 11810, *20-21 (finding the approach taken in Lutz and Wolfram warranted and approving the sending of notice to potential opt-in former employees by electronic mail). Additionally, the Court also should permit Plaintiff to send a Court-authorized reminder to all proposed Putative Class Members half-way through the notice period. See Exhibit C, attached hereto (Plaintiff s Proposed Reminder ). It is well-documented that people often disregard collective action notices. See Andrew C. Brunsden, Hybrid Class Actions, Dual Certification, & Wage Law Enforcement in the Federal Courts, 29 Berkeley J. Emp. & Lab. L. 269, 295 (2008). Given that notice under the FLSA is intended to inform as many potential plaintiffs as possible of the collective action and their right to opt-in... a reminder notice is appropriate. Morris v. Lettire Constr. Corp., 896 F. Supp. 2d 265, 275 (S.D.N.Y. 2012). 16

17 Case: 1:16-cv TSB Doc #: 2 Filed: 09/27/16 Page: 17 of 19 PAGEID #: 27 Reminder mailings to potential opt-ins who have not responded to an initial mailing are common and cause defendants no prejudice. See, e.g., Benedict v. Hewlett-Packard Co., No. 13 Civ. 119, 2014 WL , at *14 (N.D. Cal. Feb. 13, 2014) (approving reminder notice); Chhab v. Darden Rests., Inc., No. 11 Civ. 8345, 2013 WL , at *16 (S.D.N.Y. Sept. 20, 2013) (approving reminder notice); Harris v. Vector Mktg. Corp., 716 F. Supp. 2d 835, 847 (N.D. Cal. 2010) (approving reminder postcard); Adams v. Inter-Con Sec. Sys., Inc., No. 06 Civ. 5428, 2007 WL , at *5 (N.D. Cal. Oct. 30, 2007) (ordering the mailing of a reminder card to all class members who did not submit a claim form 14 days before the end of the claims period); Adams v. Inter-Con Sec. Sys., No. 06 Civ. 5428, 2007 WL , at *5 (N.D. Cal. Oct. 30, 2007) (approving reminder card). In order to facilitate timely and orderly notice to all potential Class members, Plaintiff Hamm requests that the Court order Defendant to identify all potential opt-in plaintiffs within 14 days of the entry of the Order conditionally certifying the class (i.e., identifying each person by full name, last known address, telephone number, all known addresses, and dates of employment). See Rehberg, 2013 U.S. Dist. LEXIS 40337, at *7 (ordering defendant employer to provide class members names, last known addresses, dates of employment, job title, respective warehouse, phone numbers, last four digits of their Social Security numbers, and addresses in an agreeable format for mailing. ). This information is necessary to facilitate effective notice to those employees who need to receive notice in order to exercise their right to opt in if they so choose. Hoffman La-Roche, 493 U.S. at 170; Woods v. New York Life Ins. Co., 686 F.2d 578, 581 (7th Cir. 1982); Johnson v. Am. Airlines, Inc., 531 F.Supp. 957, 961 (N.D. Tex. 1982). 17

18 Case: 1:16-cv TSB Doc #: 2 Filed: 09/27/16 Page: 18 of 19 PAGEID #: 28 The Court should allow for an opt-in period of at least forty-five (45) days. This opt-in period is necessary in order to locate Potential Opt-Ins who are currently employed or were previously employed by Defendant, and who may have moved to other locations to look for employment. See Roebuck v. Hudson Valley Farms, 239 F.Supp.2d 234, 241 (N.D.N.Y. 2002). Forty-five (45) days does not unreasonably prolong or delay the proceedings, especially if the parties commence discovery during the notice period. IV. CONCLUSION For the reasons set forth above, Plaintiff Hamm respectfully requests that the Court, pursuant to Section 16(b) of the Fair Labor Standards Act ( FLSA ), 29 U.S.C. 216(b), enter an order: (1) Conditionally certifying the proposed collective FLSA class as defined herein; (2) Implementing a procedure whereby Court-approved Notice of Plaintiffs FLSA claims is sent (via U.S. Mail and ) to: All current and former Security Officers employed by Defendant who, during the previous three years, worked more than forty hours in any workweek but were not properly compensated for all of overtime hours worked under the FLSA because of Defendant's automatic 30-minute meal deduction policy. (3) Requiring Defendant to, within fourteen (14) days of this Court s order, identify all potential opt-in plaintiffs by providing a list in electronic and importable format, of the names, addresses, and addresses of all potential opt-in plaintiffs who worked for Defendant at any time from approximately September 19, 2013 through the present. 18

19 Case: 1:16-cv TSB Doc #: 2 Filed: 09/27/16 Page: 19 of 19 PAGEID #: 29 Respectfully submitted, /s/greg Mansell Greg R. Mansell ( ) (Greg.Mansell@Ohio-EmploymentLawyer.com) Carrie J. Dyer ( ) (Carrie.Dyer@Ohio-EmploymentLawyer.com) Mansell Law, LLC 1457 S. High St. Columbus, OH Ph: (614) Fax: (513) Counsel for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on September 27, 2016 a copy of the foregoing motion and attachments was sent via Regular U.S. Mail to: Southern Ohio Medical Center c/o Statutory Agent: Randal M. Arnett th Street Portsmouth, Ohio A copy of the foregoing document was also filed electronically. Notice of this filing will be sent by operation of the Court s electronic filing system to all parties indicated on the electronic filing receipt. Parties may access this filing through the Court s ECF system. /s/greg R. Mansell Greg R. Mansell ( ) 19