Dorsey v. Aviva Metals, Inc.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

DONALD DORSEY, et al., ) CASE NO. 1:20-cv-02014

on behalf of themselves and all others )

similarly situated, )

)

Plaintiffs, ) JUDGE BRIDGET M. BRENNAN

)

v. )

)

AVIVA METALS, INC., et al., ) MEMORANDUM OPINION

) AND ORDER

Defendants. )

Before this Court is the Motion for Fed. R. Civ. P. 23 Class Certification, Conditional

Certification Pursuant to 29 U.S.C. § 216(b), Appointment of Class Counsel, and Issuance of

Notice to Putative Class/Collective Action Members filed by Plaintiffs Donald Dorsey and Craig

Murphy (“Plaintiffs”). (Doc. No. 27.) On December 13, 2021, Defendants Aviva Metals, Inc.

(“Aviva”) and Joao C.F. Saraiva (“Defendants”) filed an opposition to conditional certification

(Doc. No. 37) and an opposition to class certification (Doc. No. 38). Plaintiffs replied to both

oppositions on January 3, 2022. (Doc. Nos. 41 & 42.) For the reasons stated herein, Plaintiffs’

motion is GRANTED in part.

I. Background

A. Factual Background

Aviva Metals, Inc. (“Aviva”) is headquartered in Houston, Texas and manufactures

continuous cast bronzes. (Doc. No. 28 at ¶¶ 9, 12.) Aviva maintains a foundry in Lorain, Ohio.

(Id. at ¶ 12.) Joao Saraiva is a General Manager for Aviva, and his responsibilities include the

day-to-day operations and management of the Lorain, Ohio foundry. (Id. at ¶ 10.) Aviva

employed Donald Dorsey as an hourly manufacturing employee from approximately January

2020 to August 2020. (Id. at ¶ 19.) Aviva employed Craig Murphy as an hourly manufacturing

employee from approximately May 2017 to August 2020. (Id. at ¶ 20.)

Plaintiffs seek Rule 23 certification of two state law, Ohio Minimum Fair Wage

Standards Act, Ohio Rev. Code § 4111.03, subclasses of Aviva’s non-exempt hourly

manufacturing employees (collectively, the “Rule 23 Subclasses”). (Doc. No. 27 at PageID#

316.) Plaintiffs identify the proposed Rule 23 Subclasses as follows:

The “Rule 23 Time Editing Class”: All present and former hourly manufacturing

employees of Aviva Metals, Inc. at Aviva Metals, Inc.’s 5311 West River Rd. N.,

Lorain, OH 44055 location during the period of September 8, 2018 to the present

who (1) worked more than forty (40) hours during one or more workweeks, and (2)

were not paid for all overtime hours worked by virtue of having their time edited;

and

The “Rule 23 Time Rounding Class”: All present and former hourly manufacturing

employees of Aviva Metals, Inc. at Aviva Metals, Inc.’s 5311 West River Rd. N.,

Lorain, OH 44055 location during the period of September 8, 2018 to the present

who (1) worked more than forty (40) hours during one or more workweeks, and (2)

were not paid for all overtime hours worked by virtue of having their time rounded

pursuant to Aviva Metals, Inc.’s 10-minute rounding policy.

(Id. at PageID# 316-17.) Plaintiffs also seek conditional certification of two Fair Labor

Standards Act (“FLSA”), 29 U.S.C. §§ 207, 216(b), subclasses (collectively, the “FLSA

Subclasses”). Plaintiffs identify the proposed FLSA Subclasses as follows:

The “FLSA Time Editing Class”: All present and former hourly manufacturing

employees of Aviva Metals, Inc. at Aviva Metals, Inc.’s 5311 West River Rd. N.,

Lorain, OH 44055 location during the period of September 8, 2017 to the present

who (1) worked more than forty (40) hours during one or more workweeks, and (2)

were not paid for all overtime hours worked by virtue of having their time edited;

and

The “FLSA Time Rounding Class”: All present and former hourly manufacturing

employees of Aviva Metals, Inc. at Aviva Metals, Inc.’s 5311 West River Rd. N.,

Lorain, OH 44055 location during the period of September 8, 2017 to the present

who (1) worked more than forty (40) hours during one or more workweeks, and (2)

were not paid for all overtime hours worked by virtue of having their time rounded

pursuant to Aviva Metals, Inc.’s 10-minute rounding policy.

(Id. at PageID# 317.)

1. Time Editing

Aviva utilized an electronic timekeeping system provided by Paycom Payroll (“Paycom”)

to capture manufacturing employees’ hours worked. (Doc. No. 27 at PageID# 329; Doc. No. 15-

1, Fed. R. Civ. P. 30(b)(6) Dep. of Aviva Metals, Inc. (“AMI Dep.”) at 75:10-25.) This system

required manufacturing workers to clock their time in and out by placing their fingerprint on a

biometric scanner. (Id.) The system allowed Aviva to ascertain the exact time – to the minute –

that each manufacturing employee scanned in or out. (Id.) Aviva had no other means to record

manufacturing employees’ time. (Doc. No. 27 at PageID #330; AMI Dep. at 80:24-81:4, 148:4-

21; Doc. No. 27-2 at PageID# 669.) Paycom was then able to generate Punch Change Reports

that demonstrated when workers clocked in and clocked out of work. (Doc. No. 27 at PageID#

331; AMI Dep. at 62:20-63:6; see e.g., Doc. Nos. 27-36 & 27-37.)

Aviva’s attendance policy required all manufacturing workers to be in their assigned

work areas at the start of their shift. (Doc. No. 27 at PageID# 329; AMI Dep. at 81:5-8.)

Manufacturing employees were bound by Aviva’s tardiness policy, which defined tardiness as

“clocking in one (1) or more minutes past your scheduled starting time or reporting to the shop

floor after the start of your shift.” (Doc. No. 27-19 (emphasis in original).) The policy stated

that a manufacturing employee could lose 15 minutes of pay for such tardiness. (Id.)

Aviva required manufacturing employees to put on (or “don”) protective gear and other

equipment, spend time walking to work areas, and meet with other workers or supervisors to

discuss their job duties prior to the start of their shift time. (Doc. No. 27 at PageID# 331-37;

AMI Dep. at 144:22-145:11; Doc. No. 15-2, Dorsey Dep. at 19:10-15, 20:3-20:7, 21:24-22:15,

24:21-25:8; Doc. No. 15-3, Murphy Dep. at 30:23-33:9.) Plaintiffs confirm that Aviva required

its employees to arrive at the facility before their shift start time to don personal protective

equipment (“PPE”). (Dorsey Dep. at 19:10-18 (noting employees “had to be there early to put

our clothes and PPE – all of our PPE on”); Murphy Dep. at 30:23-33:9.) The required equipment

included insulated and/or metatarsal safety boots, safety glasses, uniforms, and other additional

equipment depending on the worker and the work environment. (See Murphy Dep. at 16:24-

17:3, 17:17-18:16, 19:10-14, 21:7-8; AMI Dep. at 129:10-130:17, 133:1-5; Dorsey Dep. at

19:22-20:2.) In some instances, employees were able to don their employee uniforms at home,

but the protective gear could only be donned at the plant. (AMI Dep. at 132:24-133:7, 144:22-

145:11; Murphy Dep. at 23:1-24:5, 31:4-33:9.) Aviva required its manufacturing employees to

wear PPE for the employees’ safety and because it was deemed an “integral and indispensable

part” of their job. (Doc. No. 32 at ¶ 28.)

After donning protective gear, manufacturing workers walked to their respective work

areas on the production floor by the start of their shift time. Per the tardiness policy, a

manufacturing employee was tardy if he or she “report[ed] to the shop floor after the start of [his

or her] shift.” (Doc. No. 27-19 (emphasis in original).) Because PPE was essential to all

manufacturing employees’ jobs, they necessarily had to don the appropriate gear prior to arriving

at their work area. (Id.; see also Doc. No. 32 at ¶ 29 (Defendants’ answer admitting that “after

donning their specialized equipment, Plaintiffs and other manufacturing employees walked from

the area in which they retrieved or put on the specialized equipment to the production area.”).)

Manufacturing workers frequently attended pre-shift meetings. (See Dorsey Dep. at

24:21-25:14; Murphy Dep. at 33:19-34:14, 53:8-14.) Manufacturing workers had to confirm

their daily tasks with supervisors prior to the start of their shift. (See, e.g., Murphy Dep. at

33:19-6.) And, prior to their shift starting time, workers met with the prior shift’s employees to

ascertain any pertinent shift-change information. (See, e.g., Dorsey Dep. at 26:3-17.) Plaintiffs

state that all pre-shift activities – from donning PPE, to walking to the shop floor, to any

meetings needed prior to the shift – were necessary to complete job duties. (See Murphy Dep. at

33:19-34:23.) Because of this, Plaintiffs assert they were actually working and should have been

compensated for time spent prior to the shift starting time. (See Dorsey Dep. at 26:24-27:3

(estimating that, after clocking in, donning equipment, and walking to the floor, he was on the

floor working at least 10-15 minutes prior to the shift starting time); see also Murphy Dep. at

33:19-34:23.)

Plaintiffs assert that manufacturing workers’ shift starting time – and the start of their

compensatory clock – were one in the same. Plaintiffs point out that the time for which they

were compensated was computed only from the scheduled start time of their shift. This, they

argue, ignores actual time spent engaged in work before their shift. In support, Plaintiffs attach a

spreadsheet listing approximately three thousand examples of Aviva’s time manipulation

policies. (See Doc. No. 27-1.) The spreadsheet identifies an “old value,” which reflects when an

employee scanned in the building. (Id.) The spreadsheet also lists a “new value,” which shows

the edited time. (Id.) For example, Dorsey scanned into work at 2:32 P.M. (the “old value”) on

August 11, 2020, but his time was edited to 3:00 P.M. (the “new value”) in the Paycom system.

(Id. at PageID# 454.)

The records reflect that Aviva also edited the time at the end of an employee’s shift. (See

id. at PageID# 385 (reflecting edited clock out time on December 18, 2018, for Darryl Collett

from 3:26 P.M. to 3:00 P.M.).) Countering these assertions, Aviva notes that its manufacturing

employees left their positions 15 minutes before the end of their shifts. The company

compensated employees for those 15 minutes, purportedly to account for time spent putting on

and taking off the protective gear. (AMI Dep. at 81:21-82:2.) Plaintiffs respond this is of no

import because it often took the full 15 minutes at the end of a shift to clean up, return to the

locker room, and take off (or “doff”) the equipment. (See Dorsey Dep. at 31:18-23; Murphy

Dep. at 45:25-48:25.) Moreover, Plaintiffs state that manufacturing workers often remained on

the floor working beyond the 15-minute early release. (Murphy Dep. at 45:1-16 (noting that for

a shift ending at 11:30 P.M. he was frequently on the shop floor until 11:20 P.M. or 11:25

P.M.).) Further, Plaintiffs state that Aviva required its manufacturing employees to remain

clocked in until the official end time of their shift. (See Dorsey Dep. at 28:12-18 (noting

manufacturing employees “would get docked” pay if they clocked out early); Murphy Dep. at

44:7-22 (noting employees were reprimanded for attempting to clock out early).)

Accordingly, Plaintiffs argue that Aviva’s policy of editing manufacturing employees’

start and end time resulted in unpaid overtime in violation of Ohio and federal laws.

2. Time Rounding

Aviva rounded employees’ compensable work time to quarter-hour (i.e., 15-minute)

increments, but Aviva’s timekeeping system automatically rounded down, i.e., adverse to

manufacturing employees, unless they worked a full eleven (11) minutes of additional time.

(Doc. No. 27 at PageID# 343-44; AMI Dep. 177:3-178:2.) Aviva’s payroll records demonstrate

that workers had to work a full eleven extra minutes to receive a favorable round of their time.

(See, e.g., Doc. No. 27-23 (demonstrating employee who worked 8 hours and 10 minutes was

only compensated for 8 hours of work).) While acknowledging that time rounding is not a per se

violation of the FLSA or Ohio’s wage and hour laws, Plaintiffs complain that Aviva’s 11-minute

threshold operates more like a one-way ratchet: by design, it rounds against an employee more

often and thus does not ‘average out’ over time to provide full compensation for time worked.

(Doc. No. 27 at PageID# 344.)

B. Procedural History

On September 8, 2020, Plaintiffs filed this class and collective action. (Doc. No. 1.)

Aviva answered on November 9, 2020. (Doc. No. 10.) At the April 27, 2021 status conference,

the Court set an August 2, 2021 deadline for Plaintiffs to file for conditional class certification

and class certification. (Doc. No. 13.) The Court also extended the deadline for fact discovery

to September 1, 2021. (Id.) On July 6, 2021, Plaintiffs filed a motion for leave to file a first

amended complaint instanter seeking to clarify their wage violation claims. (Doc. No. 18.)

Specifically, they sought to add a revised definition pertaining to the time editing class and an

additional class relating to Aviva’s time rounding practices. (Id.) Defendant Saraiva was also

newly named upon information learned during discovery. (Id.) On August 16, 2021, the Court

issued an Order granting the motion for leave to amend the complaint instanter. (Doc No. 25.)

The Court granted Plaintiffs’ request to amend their complaint in part because the time rounding

claim was “straightforward,” fact discovery had yet to close, and Plaintiffs did not seek to re-

depose Mr. Saraiva. (Doc. No. 25 at PageID# 314.)

On August 23, 2021, Plaintiffs filed this motion for class certification pursuant to Fed. R.

Civ. P. 23, conditional class certification pursuant to 29 U.S.C. § 216(b), appointment of class

counsel, and issuance of notice to class members. (Doc. No. 27.) On August 27, 2021, Plaintiffs

separately filed the amended complaint. (Doc. No. 28). Defendants answered on September 3,

2021. (Doc. No. 32.) On December 13, 2021, Defendants filed an opposition to Plaintiffs’

motion for FLSA conditional certification (Doc. No. 37) and Rule 23 class certification (Doc.

No. 38). On January 3, 2022, Plaintiffs replied to both oppositions. (Doc. Nos. 41 & 42.)

II. Law and Analysis

Plaintiffs bring a Rule 23 class action alleging violations of the Ohio Wage Act as well as

an FLSA collective action alleging violations of federal law. Ohio law expressly incorporates

the standards and principles found in the FLSA. See Ohio Rev. Code § 4111.03(A) (“An

employer shall pay an employee . . . in the manner and methods provided in and subject to the

exemptions of section 7 and section 13 of the [FLSA].”); Roufail v. SNS Cleveland LLC, No.

1:13-cv-1849, 2014 WL 356506, at *2 n.1 (N.D. Ohio Jan. 31, 2014) (“The FLSA and the [Ohio

Wage Act] may be considered together under federal law because the Ohio statute expressly

incorporates the standards and principles found in the FLSA.” (internal citation omitted)). Thus,

the laws underlying Plaintiffs’ claims are analyzed using the same standards. The preliminary

mechanisms for certification, however, are addressed separately.

Employers are required to pay employees a minimum wage and overtime compensation

for each hour worked in excess of 40 hours in each work week. Integrity Staffing Sols., Inc. v.

Busk, 574 U.S. 27, 31 (2014). But compensable work is not specifically defined by law. See 29

U.S.C. §§ 206-207; Busk, 574 U.S. at 31. The Supreme Court initially defined compensable

work as “all time during which an employee is necessarily required to be on the employer’s

premises, on duty or at a prescribed workplace.” Anderson v. Mt. Clemens Pottery Co., 328 U.S.

680, 690-91 (1946). Congress later narrowed that definition when it enacted the Portal-to-Portal

Act of 1947, 29 U.S.C. §§ 251-62, which carved out two exclusions from the FLSA’s definition

of compensable work. See Busk, 574 U.S. at 32-33. The FLSA now provides that time spent

“walking, riding, or traveling to and from the actual place of performance of the principal

activity or activities which such employee is employed to perform” or “activities which are

preliminary to or postliminary to [the employee’s] principal activity or activities” are not

compensable. 29 U.S.C. § 254(a).

Determining whether an activity is “preliminary to or postliminary to . . . [a] principal

activity” requires courts to decide what constitutes an employee’s “principal activity.” See Busk,

547 U.S. at 33. The Supreme Court has defined this phrase to include both the principal

activities themselves as well as “all activities which are an ‘integral and indispensable part of the

principal activities.’” Id. (quoting IBP, Inc. v. Alvarez, 546 U.S. 21, 29-30 (2005)). In turn, an

activity is “integral and indispensable . . . to the principal activities that an employee is employed

to perform if it is an intrinsic element of those activities and one with which the employee cannot

dispense if he is to perform his principal activities.” Id. Importantly, the integral-and-

indispensable inquiry does not hinge on whether the employer requires the activity or otherwise

benefits the employer, but rather whether it is “tied to the productive work that the employee is

employed to perform.” Id. at 36. (emphasis in original). The Supreme Court has held that the

donning of safety equipment integral to an employee’s principal activity, including metatarsal

safety boots and hard hats, qualifies as compensable time. See Sandifer v. U.S. Steel Corp., 571

U.S. 220, 232 (2014).

Employers are required to compute their employees’ time from the moment they perform

the first act that is “integral and indispensable” to their “principal activities.” 29 C.F.R. §

790.6(a). Under the “continuous workday rule,” “any walking time that occurs after the

beginning of the employee’s first principal activity and before the end of the employee’s last

principal activity is excluded from the scope of that provision, and as a result is covered by the

FLSA.” IBP, 546 U.S. at 37. Accordingly, employers are required to compensate their

employees for all principal activities, including donning and doffing equipment, as well as for all

time that occurs after the first principal activity. Id.

With respect to time rounding, Department of Labor regulations require that, should an

employer round its employees’ time, the time must be rounded “to the nearest 5 minutes, or to

the nearest one-tenth or quarter of an hour.” 29 C.F.R. § 785.48(b). Further, the method for

rounding time must not “result, over a period of time, in failure to compensate the employees

properly for all the time they have actually worked.” Id. In other words, a valid rounding policy

must be “neutral, both facially and as applied.” Corbin v. Time Warner Entm’t-

Advance/Newhouse P’ship, 821 F.3d 1069, 1075 (9th Cir. 2016) (quotation and citation omitted).

Courts recognize that overtime violations can occur where an employer rounds its employees’

times without evidence that the rounding practice averaged out to fully compensate the

employees for the time worked. See, e.g., Rapp v. Forest City Techs., Inc., No. 1:20-cv-2059,

2021 WL 2982005, at *4 (N.D. Ohio July 15, 2021).

A. The Rule 23 Subclasses

A district court has broad discretion to decide whether to certify a class. In re Whirlpool

Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 850 (6th Cir. 2013) (citing In re

Am. Med. Sys. Inc., 75 F.3d 1069, 1079 (6th Cir. 1996)). To be certified, a class must initially

satisfy all of Rule 23(a)’s prerequisites – numerosity, commonality, typicality, and adequacy of

representation – and then also be of a type recognized in Rule 23(b). Young v. Nationwide Mut.

Ins. Co., 693 F.3d 532, 537 (6th Cir. 2012). Here, Plaintiffs proceed under Rule 23(b)(3), which

requires this Court to conclude “that the questions of law or fact common to class members

predominate over any questions affecting only individual members” and that a class action is

“superior to other available methods.” Whirlpool, 722 F.3d at 850-51 (6th Cir. 2013) (citation

omitted).

In reviewing a Rule 23 motion for class certification, the district court must engage in a

rigorous analysis to determine if all Rule 23 prerequisites are met. Wal-Mart Stores, Inc. v.

Dukes, 564 U.S. 338, 350-51 (2011). Meaning, the court must do more than apply a deferential

standard where it resolves doubts in the movant’s favor but requires less than a “dress rehearsal

for the trial on the merits.” Whirlpool, 722 F.3d at 851-52 (citing Messner v. Northshore Univ.

HealthSys., 669 F.3d 802, 811 (7th Cir. 2012)). Thus, the court’s findings must be supported by

evidence adducing Rule 23’s requirements, with any merits analysis limited to resolving whether

the Rule 23 prerequisites are satisfied at this stage. Id.; see also Amgen Inc. v. Conn. Ret. Plans

& Trust Funds, 568 U.S. 455, 465-66 (2013).

As an initial matter, Defendants contend that Plaintiffs misrepresent or omit information

in their motion for certification. (Doc. No. 38 at PageID# 1450-51.) Specifically, Defendants

argue that the motion: (1) erroneously states that workers were required to be in their “assigned

work area” at the start of the shift when the tardiness policy states they had to be on the shop

floor; (2) overemphasizes time editing practices without reliable evidence that the specific time

edited was compensable; (3) misconstrues the deposition testimony of Saraiva by erroneously

stating Defendants concede that the biometric scans indicate when a manufacturing employee

physically started work; and (4) misstates that uniforms were unable to be donned at home. (Id.)

With respect to the dispute over where a manufacturing employee must be at the start of

his shift, the resolution of this factual dispute does not affect the Court’s rigorous analysis

relating to certification. Whether the correct location is the shop floor or an assigned working

area has no bearing on the ultimate issue of whether a class action is the best mechanism for

resolving this compensation dispute.

Defendants next argue that Plaintiffs failed to provide specific and reliable evidence that

the time edited was actually compensable. Although a rigorous analysis of class certification

often requires the trial court to “probe behind the pleadings,” the Sixth Circuit recognizes that

sometimes issues are so straightforward that admissible evidence may not be necessary to rule on

certification. Lyngaas v. Ag, 992 F.3d 412, 428-30 (6th Cir. 2021). Here, Plaintiffs submitted

evidence to support their claims. One example is a spreadsheet listing thousands of instances

where Aviva edited time. (Doc. No. 27-1.) Plaintiffs further submitted their own deposition

testimony, with each Plaintiff stating that they were required to arrive prior to their start time to

don uniforms and protective gear, attend pre-shift meetings, and arrive at their worksites. (Doc.

Nos. 15-2 & 15-3.)

To counter Plaintiffs’ evidence on when manufacturing employees physically started to

work, Defendants rely on Saraiva’s 30(b)(6) deposition testimony to undermine the Plaintiffs’

assertion that employees began work upon scanning into the building. (See Doc. No. 38 at

PageID# 1447 (citing AMI Dep. at 72-82, 182-185).) They also rely on Plaintiffs’ deposition

testimony to demonstrate that all manufacturing employees followed different policies and

procedures. (Doc. No. 38 at PageID# 1448 (citing Dorsey Dep. at 20; Murphy Dep. at 16, 23-

24.) While there is testimony raising questions about what certain compensable time may be, it

is not significant enough to defeat class treatment for the reasons explained infra. Defendants

attach no other exhibits to their opposition.

Plaintiffs’ motion does appear to misconstrue Saraiva’s testimony as Aviva’s 30(b)(6)

witness. The company does not expressly concede that the biometric scans indicate when the

individual physically started to work. But again, the resolution of this question is not necessary

for the Court’s Rule 23 analysis. At this stage, Plaintiffs submitted evidence that work began

before a shift started, including that employees were required to arrive early in order to don

required protective equipment and other gear, attend pre-shift meetings, and walk to their

assigned location by the start of their shift. Defendants may overcome Plaintiffs’ claims if the

evidence does not substantiate when Plaintiffs began their pre-shift activities, but that is a

question left for the Court’s merits analysis. See Amgen, 568 U.S. at 465-66 (“Rule 23 grants

courts no license to engage in free-ranging merits inquiries at the certification stage. Merits

questions may be considered to the extent—but only to the extent—that they are relevant to

determining whether the Rule 23 prerequisites for class certification are satisfied.”) It does not

preclude certification.

The Court acknowledges that Murphy, like some other manufacturing employees,

occasionally donned his uniform prior to arriving at Aviva’s facility. Defendants’ concerns do

not account for other protective equipment that they acknowledge manufacturing employees

must don while at the facility. This argument does, however, relate to Murphy’s capacity to be

the representative plaintiff. The Court addresses that concern below.

1. Ascertainability

Although not included in Rule 23, ascertainability is an “implied requirement that the

putative class members can be readily identified based on the class definition.” Tarrify

Properties, LLC v. Cuyahoga Cnty., Ohio, 37 F.4th 1101, 1105-06 (6th Cir. 2022) (quoting

Sandusky Wellness Ctr., LLC v. ASD Specialty Healthcare, Inc., 863 F.3d 460, 466 (6th Cir.

2017)). A “class definition must be sufficiently definite so that it is administratively feasible for

the court to determine whether a particular individual is a member of the proposed

class.” Sandusky Wellness Ctr., 863 F.3d at 471 (quotation omitted). If “mini-trials” become

necessary to determine who is a member of the class, the class action vehicle imposes

inefficiencies rather than ameliorates them. Id. at 471-74. Courts have found ascertainability

satisfied where “the identities of the members of the proposed [subclasses] are identifiable and

ascertainable based on the wage and hours” information maintained by defendant. Rapp, 2021

WL 2982005, at *6.

Defendants argue that Plaintiffs’ proposed classes consist of “the exact same set of

individuals,” so “neither subclass is identifiable and unambiguous.” (Doc. No. 38 at PageID#

1454.) Defendants thus contend that the subclass definitions are “inherently over-inclusive and

overly broad.” (Id.) In reply, Plaintiffs assert that while the subclasses consist of similar

individuals, any such overlap reflects how pervasive Defendants’ policies were and how they

unlawfully affected the manufacturing workforce. (Doc. No. 41 at PageID# 1470.)

The definitions of the Rule 23 Subclasses are administratively feasible because they are

based on objective criteria: job status, hours worked, and unpaid overtime hours. Plaintiffs seek

certification solely for hourly manufacturing employees. The time editing and time rounding

policies applied to all manufacturing employees, and any harm or resulting liability would follow

from application of those policies. Because all hourly manufacturing employees were subject to

the same time manipulation policies, both Rule 23 Subclasses are ascertainable.

2. Rule 23(a)

a. Numerosity

The Rule 23 Time Editing Class and the Rule 23 Time Rounding Class each contain

approximately 130 members. (Doc. No. 27 at PageID# 354; see also Doc. No. 27-2 at PageID#

682-83 (indicating in Defendants’ discovery responses that there were approximately 130

manufacturing employees in the two years preceding the lawsuit).) Plaintiffs assert that “joinder

of all members is impracticable” and that there is no strict numerical test to establish numerosity.

(Doc. No. 27 at PageID# 354.) Defendants do not respond to this argument in their opposition.

(See Doc. No. 38.)

The proposed class must be “so numerous that joinder of all members is impracticable.”

Fed. R. Civ. P. 23(a)(1). In Whirlpool, the Sixth Circuit held “no strict numerical test exists to

define numerosity under Rule 23(a)(1),” but that the class must be a “substantial” number of

impacted individuals. Whirlpool, 722 F.3d at 852 (citation omitted). Although no test exists,

courts have held that “a class of 40 or more members raises a presumption of impracticability.”

Zehentbauer Fam. Land LP v. Chesapeake Expl., L.L.C., No. 4:15-cv-2449, 2018 WL 3496089,

at *3 (N.D. Ohio July 20, 2018), aff’d, 935 F.3d 496 (6th Cir. 2019). In the context of a class

action regarding failure to pay minimum wages in violation of federal and Ohio law,

approximately 100 putative class members was deemed sufficient to satisfy numerosity.

Branning v. Romeo’s Pizza, Inc., No. 1:19-cv-2092, 2022 WL 986090, at *4 (N.D. Ohio March

29, 2022). The same is true here. Both Rule 23 Subclasses are sufficiently numerous.

b. Commonality

Plaintiffs’ alleged common issues of law and fact presented for the Rule 23 Subclasses

are: “(a) whether the class members were subjected to practices or policies resulting in unpaid

overtime; (b) whether Aviva’s practices or policies resulting in the non-payment of overtime

wages are illegal under Ohio law; and (c) the appropriate measure of damages resulting from

Aviva’s overtime practices or policies.” (Doc. No. 27 at PageID# 356 (citing Doc. No. 18-1 ¶¶

64-65).) In support of commonality, Plaintiffs argue that all manufacturing employees were

given the same offer letter and signed the same forms; bound by the same employee handbook

(although no employees actually received the handbook); required to wear PPE; and subject to

the same tardiness policy and timekeeping system. (Doc. No. 27 at PageID# 356-58.) Plaintiffs

also argue that commonality is established by the thousands of examples in Aviva’s punch

editing and payroll records. (Id. at PageID# 358.) Finally, Plaintiffs argue that all

manufacturing employees were party to an agreement to receive overtime pay “at time and a half

upon completion of a standard 40-hour workweek.” (Id. at PageID# 359 (citing Doc. No. 27-

12).)

Defendants argue that Plaintiffs’ failure “to develop the facts and legal contentions with

enough particularity to prove that there is commonality for the requested subclasses” details their

view on why certification is improper. (Doc. No. 38 at PageID# 1455.) Defendants say that

there are too many variables to consider among the pertinent employees, such as their: positions

or departments, precise uniforms or protective gear, specific practices relating to shift meetings

and preparatory activities, varied walking distances to workstations, and damages as a result of

the timekeeping and editing policies. (Id. at PageID# 1455-56.) Defendants further argue that

Plaintiffs have not demonstrated “a single, unified policy violating Ohio law” common to either

the time editing or time rounding subclasses. (Id. at PageID# 1456.) And if all time editing and

rounding simply results in a de minimis reduction of compensable time, such practices are not

unlawful. (Id.)

Defendants also assert that Plaintiffs’ motion relies on an ad hoc generalization of their

claims, “extrapolating or assuming (without supporting record evidence) that all members of the

requested subclasses were affected in the same way.” (Id. at PageID# 1457.) According to

Defendants, Plaintiffs’ “purported common questions of fact and law fail to show that their

claims are capable of class-wide resolution.” (Id.) Individualized determinations are needed for

both liability and damages, Defendants urge. (Id. at PageID# 1457-1458.)

Commonality requires “questions of law or fact common to the class.” Fed. R. Civ. P.

23(a)(2). A plaintiff’s “claims must depend upon a common contention . . . [which is] of such a

nature that it is capable of classwide resolution—which means that determination of its truth or

falsity will resolve an issue that is central to the validity of each one of the claims in one

stroke.” Dukes, 564 U.S. at 350. Plaintiffs must demonstrate one question common to the class,

so long as the resolution of that question “will advance the litigation.” Sprague v. Gen. Motors

Corp., 133 F.3d 388, 397 (6th Cir. 1998) (citation omitted). Class relief is particularly

appropriate when the “issues involved are common to the class as a whole” and when they “turn

on questions of law applicable in the same manner to each member of the class.” Gen. Tel. Co.

of Sw. v. Falcon, 457 U.S. 147, 155 (1982) (citation omitted).

In Whirlpool, the plaintiffs sued for tortious breach of warranty, negligent design, and

failure to warn with respect to a design defect in Whirlpool’s frontloading washing machines.

722 F.3d at 843. The Sixth Circuit analyzed whether the claims presented common issues to the

class by assessing whether common questions were necessary to the resolution of this matter. Id.

at 853. The Sixth Circuit held that whether a design defect proximately caused mildew or

whether Whirlpool had a duty to warn customers were essential questions to liability. Id. The

claims may “rise and fall” with those questions common to the class, so commonality was

satisfied. Id.

Consistent with Whirlpool, commonality here may rest on questions that would be

essential to resolve liability for the subclasses: Were class members subject to practices or

policies resulting in unpaid overtime? Did Aviva’s practices or policies result in the unlawful

non-payment of overtime wages in violation of Ohio law? What is the appropriate measure of

damages resulting from Aviva’s overtime practices or policies?

With respect to the Rule 23 Time Editing Class, commonality is satisfied. Plaintiffs

assert that as a result of Aviva’s time editing policies, they were not compensated for hours spent

working pre- and post-shift donning and doffing equipment, walking to and from their assigned

worksite, and participating in pre- and post-shift meetings.

All manufacturing workers were bound by the tardiness policy that required them to be in

their working areas by the start of the shift. (Doc. No. 27-19.) The policy effectively required

workers to arrive early enough to don protective equipment and walk to their assigned area by

the start of their shift. Plaintiffs presented evidence that demonstrates that once employees

biometrically scanned into the building, Aviva later edited their time, failing to capture the time

spent doing pre-shift activities. (See, e.g., AMI Dep. at 81:21-82:2.) Plaintiffs also presented

evidence showing that Aviva edited the end-of-shift times, which failed to capture the time spent

doing post-shift activities.

Defendants assert that the time employees scanned into the building is not the beginning

of the workday. Moreover, any such work time is compensated in effect by Aviva’s end-of-shift

departure policy allowing employees to leave the floor 15 minutes early. Evidence regarding

post-shift activities is not yet fully or clearly developed. Defendants ultimately may prove that

Aviva’s manufacturing employees were fully compensated for their time, but for now the issue is

more limited, i.e., identifying common questions of law or fact. Whirlpool, 722 F.3d at 853.

Plaintiffs have carried their burden with respect to the Rule 23 Time Editing Class because the

resolution of common questions of both law and fact are necessary to resolve this matter.

Commonality is also satisfied with respect to the Rule 23 Time Rounding Class. The

principal question with respect to time rounding is simply whether Aviva’s policies and

practices, in the aggregate, resulted in unpaid overtime that was not de minimis. Defendants urge

that courts have found daily periods of approximately ten minutes to be de minimis. Assuming

that is so, and that such a result should follow here, then Aviva implicitly acknowledges the

existence of a common, potentially dispositive question of law. Moreover, Plaintiffs submitted

Punch Change Reports showing that manufacturing workers were not paid unless they worked a

full eleven-minute increment. This is sufficient at this stage to indicate a common question of

fact as to how much compensable overtime was eliminated by Aviva’s rounding practice. (See,

e.g., Doc. No. 27-23 (showing that an employee who worked 8 hours and 10 minutes was only

compensated for 8 hours of work).)

Defendants also assert that individual employees’ varying job descriptions,

responsibilities, and pre- and post-shift tasks preclude a finding of commonality. This argument

is unavailing. That manufacturing employees may have different job duties during a shift does

not defeat Plaintiffs’ claim that common practices and questions of law prevail. Those policies

might constitute common proof of causation underlying all class members’ claims. Cf. Young,

693 F.3d at 543. In Young, plaintiff policyholders alleged that defendants charged them local tax

premiums where either the tax was not owed or the amount owed was in excess of the amount

billed to the policyholder. Id. at 535. The defendants challenged commonality because no

uniform policy resulted in all of plaintiffs’ harms and individualized factual assessments were

necessary to ascertain the harm to each policyholder. Id. at 542-43. The Sixth Circuit held that

these types of individualized assessments were not dispositive of the court’s commonality

analysis, where common questions of causation were central to all plaintiffs’ claims and would

advance the interests of the class as a whole. Id. at 543.

Here, while individual questions regarding time spent donning protective gear, walking to

the shop floor, and attending pre-shift meetings might vary among manufacturing employees, if

so that distinction affects how much compensable time was lost for particular groups of

employees. While that distinction may turn out to be significant for measuring the scope of

damages, that does not displace common questions of fact and law regarding of liability.

Because common contentions are capable of classwide resolution, the Court finds Rule

23’s commonality requirement is satisfied with respect to the Rule 23 Time Rounding Class.

c. Typicality

The claims or defenses asserted by the representative parties must be typical of the claims

or defenses asserted by the class. Fed. R. Civ. P. 23(a)(3). “The premise of the typicality

requirement is simply stated: as goes the claim of the named plaintiff, so go the claims of the

class.” Sprague, 133 F.3d at 399. A claim may be typical where “it arises from the same event

or practice or course of conduct that gives rise to the claims of other class members, and if his or

her claims are based on the same legal theory.” In re Am. Med. Sys., 75 F.3d at 1082 (citation

omitted).

Typicality is necessary to ensure that “the representatives’ interests are aligned with the

interests of the represented class members so that, by pursuing their own interests, the class

representatives also advocate the interests of the class members.” Whirlpool, 722 F.3d 852-53

(citation omitted). However, “a representative’s claim need not always involve the same facts or

law, provided there is a common element of fact or law.” Beattie v. CenturyTel, Inc., 511 F.3d

554, 561 (6th Cir. 2007) (quoting Senter v. Gen. Motors Corp., 532 F.2d 511, 525 n. 31 (6th Cir.

1976)). Typicality and commonality “tend to merge” because both “serve as guideposts for

determining whether under the particular circumstances maintenance of a class action is

economical and whether the named plaintiff’s claims and the class claims are so interrelated that

the interests of the class members will be fairly and adequately protected in their absence.”

Dukes, 564, U.S. at 349 n.5. Because of this, courts have found typicality “if the claims or

defenses of the representatives and the members of the class stem from a single event or a

unitary course of conduct.” Rikos v. Procter & Gamble Co., 799 F.3d 497, 509 (6th Cir. 2015)

(emphasis added) (quoting 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,

Federal Practice and Procedure § 1764 (3d ed. 2005)).

Plaintiffs offer evidence that their claims are typical of the Rule 23 Time Editing Class.

The spreadsheet demonstrating the changed hours of manufacturing employees illustrates that

Plaintiffs and class members alike were subject to Aviva’s time editing policies irrespective of

the individual circumstances surrounding each worker. (See Doc. No. 27-1.) Plaintiffs’ claims

are also typical of the Rule 23 Time Rounding Subclass. The timecard editor reports appear to

show that Aviva consistently rounded time contrary to an employee’s interest unless an

employee worked a full eleven minutes. (See, e.g., Doc. No. 27-15, Dorsey Timecard Editor

Report; Doc. No. 27-26, Jesse Lowman Timecard Editor Report.)

Although Defendants argue that different job descriptions and responsibilities may

require factual inquiries into individual claims (Doc. No. 38 at PageID# 1458-59), “differences

in job title do not defeat typicality.” Kuchar v. Saber Healthcare Holdings LLC, 340 F.R.D. 115,

122 (N.D. Ohio 2021). In Kuchar, defendants opposed class certification by arguing that the

named plaintiff held different job titles from those in the class. Id. The court held that the

different titles were immaterial because the dispute centered on whether employees were

underpaid as a result of the defendant’s meal break policy. Id. The same reasoning holds true

here. Defendants’ time editing policies affected all Rule 23 Time Editing Class members.

Moreover, Plaintiffs’ claims are typical to the Rule 23 Time Rounding Class members because

Aviva’s timekeeping system automatically rounded against all manufacturing employees unless

they worked a full eleven-minute increment. (AMI Dep. at 177:3-178:2.)

For those reasons, the Plaintiffs’ claims are typical of the Rule 23 Time Editing Class and

the Rule 23 Time Rounding Class.

d. Adequacy of Representation

Plaintiffs assert that they will adequately represent the interests of both Rule 23

Subclasses because they have “vigorously prosecuted this action and will continue to do so.”

(Doc. No. 27 at PageID# 361-62.) Plaintiffs complied with discovery requests. (See Doc. Nos.

27-3 & 24-4.) They also were deposed. (See Doc. Nos. 15-2 & 15-3.) Their counsel is qualified

to litigate this matter and is experienced in wage-and-hour and class action litigation. (Doc. No.

27 at PageID# 361.) Defendants argue that Plaintiffs cannot adequately represent the putative

class members’ interests because they have failed to establish commonality and typicality. (Doc.

No. 38 at PageID# 1459.) They also question whether Murphy is an appropriate class

representative because he occasionally wore his uniform into work.

The court must determine if “the representative parties will fairly and adequately protect

the interests of the class.” Fed. R. Civ. P. 23(a)(4). The Sixth Circuit has set forth a two-

pronged test for determining adequacy of representation: “1) the representative must have

common interests with unnamed members of the class, and 2) it must appear that the

representatives will vigorously prosecute the interests of the class through qualified counsel.” In

re Am. Med. Sys., 75 F.3d at 1083 (quotation and citations omitted). In conducting this inquiry,

the court “reviews the adequacy of class representation to determine whether class counsel are

qualified, experienced and generally able to conduct the litigation, and consider whether the class

members have interests that are not agnostic to one another.” Stout v. J.D. Byrider, 228 F.3d

709, 717 (6th Cir. 2000) (citation omitted).

Defendants argue that Plaintiffs have not established adequacy of representation because

they failed to establish commonality and typicality. The adequacy of representation requirement

focuses on the representatives’ aligned interests with the class and the likelihood that the

representatives will “vigorously” engage in prosecution, aided by qualified counsel. In Beattie,

the Sixth Circuit found that adequacy was satisfied because there was “no indication of a conflict

of interest between the named plaintiffs and the class members.” 511 F.3d at 563 (quotations

omitted). The Sixth Circuit held that because the named representatives suffered from the same

injury as the class, there was “every reason to believe that [class representatives] will vigorously

prosecute the interests of the class.” Id. Here, Plaintiffs say they suffered the same injuries as

the subclass members – unpaid overtime wages as a result of Aviva editing and rounding

Plaintiffs’ time – and there is no indication that they will not vigorously prosecute those claims.

Defendants do, however, question whether Murphy is an appropriate representative

plaintiff because he testified that some employees, including him, donned their uniform prior to

arriving at the facility. This does not preclude Murphy from adequately representing the

interests of the class. Defendants still acknowledge that PPE other than a uniform must be kept

in the workplace and donned at the facility. (See Doc. No. 38 at PageID# 1447.) And there is no

allegation that Murphy was not subject to the same time manipulation policies of the Rule 23

Subclasses. The Court is satisfied that Dorsey and Murphy adequately represent the interests of

the unnamed class members.

Moreover, Plaintiffs’ counsel is qualified to represent this matter. In Beattie, the Sixth

Circuit found “plaintiffs’ counsel is an experienced practitioner in this area” because of the

“numerous class action cases in which counsel has participated.” 511 F.3d at 563. The same is

true here. See, e.g., Rapp, 2021 WL 2982005, at *10 (finding plaintiff’s counsel in this matter to

be experienced in the work of class action litigation). Plaintiffs’ counsel is qualified for the

reasons stated in the operative motion.

Taken together, adequacy of representation has been established.

3. Rule 23(b)

Having met their Rule 23(a) burden, Plaintiffs must also satisfy at least one Rule 23(b)

requirement. Sprague, 133 F.3d at 397. Plaintiffs elected to move under Rule 23(b)(3). (Doc.

No. 27 at PageID# 362.) Rule 23(b)(3) provides that when Rule 23(a) is satisfied, a class action

may be maintained if:

the court finds that the questions of law or fact common to class members

predominate over any questions affecting only individual members, and that a class

action is superior to other available methods for fairly and efficiently adjudicating

the controversy. The matters pertinent to these findings include:

(A) the class members’ interests in individually controlling the prosecution

or defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy

already begun by or against class members;

(C) the desirability or undesirability of concentrating the litigation of the

claims in the particular forum; and

(D) the likely difficulties in managing a class action.

Accordingly, a plaintiff must demonstrate “predominance (that ‘the questions of law or

fact common to class members predominate over any questions affecting only individual

members’)” and “superiority (that ‘a class action is superior to other available methods for fairly

and efficiently adjudicating the controversy’).” Tarrify Properties, 37 F.4th at 1105-06 (quoting

Sandusky Wellness Ctr., 863 F.3d at 466).

a. Predominance

Because the principal liability issue in this case is whether Aviva’s time editing and time

rounding practices resulted in unpaid overtime, Plaintiffs assert that the common issues

predominate over the questions affecting individual members. (Doc. No. 27 at PageID# 363.)

Defendants argue that Plaintiffs failed to demonstrate predominance because the Court will need

to engage in an individualized analysis of the potential claims of the members. (Doc. No. 38 at

PageID# 1460.)

“The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently

cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S.

591, 623 (1997). “To satisfy the predominance requirement in Rule 23(b)(3), a plaintiff must

establish that the issues in the class action that are subject to generalized proof, and thus

applicable to the class as a whole, . . . predominate over those issues that are subject only to

individualized proof.” Beattie, 511 F.3d at 564 (internal quotation and citation omitted).

Common issues may predominate when liability can be determined on a class-wide basis despite

the existence of individualized damages issues. Id.

As discussed, supra, resolution of Plaintiffs’ claims involves the following common

questions: (a) whether class members were subject to practices or policies that resulted in unpaid

overtime; (b) whether Aviva’s practices or policies that resulted in the non-payment of overtime

wages were unlawful; and (c) the appropriate measure of damages resulting from Aviva’s

overtime practices or policies. Again, these questions can be determined through common proof

that is applicable to the putative class as a whole.

While Defendants argue that predominance cannot be satisfied because the Court will

have to make individualized determinations with respect to liability and damages, predominance

can be found despite individual inquiries where “the damages arise from a course of conduct that

is applicable to the entire class: Defendants’ payroll practices.” Branning, 2022 WL 986090, at

*7 (quoting Waters v. Pizza to You, LLC, No. 3:19-cv-372, 2021 WL 229040, at *9 (S.D. Ohio

Jan. 22, 2021)); see also Stephenson v. Family Solutions of Ohio, Inc., No. 1:18-cv-2017, 2021

WL 1253459, at *20-21 (N.D. Ohio Apr. 5, 2021), (finding predominance despite facts and

circumstances surrounding class members’ employment with the company varying), motion to

certify appeal denied, 2022 WL 393924 (N.D. Ohio Feb. 9, 2022). In Branning, plaintiffs

brought a Rule 23 class action and an FLSA collective action against a pizza company for failure

to properly reimburse delivery drivers. 2022 WL 986090, at *1-2. The court found that the

common claim predominated because the drivers were subject to the same reimbursement policy.

Id. at *7. Therefore, liability turned on whether defendants paid that rate, and the damages

resulted from the same conduct common to the class. Id.

The common questions predominate here. For example, if all manufacturing employees

(regardless of title or task) wore some form(s) of protective equipment, and if all manufacturing

employees arrived early enough to don that equipment and be in place as of their shift start time,

then a key question common to all class members’ claims will be whether or not donning that

equipment is integral to their job. If all manufacturing employees were in theory allowed to

leave 15 minutes before their shift end time, but in practice rarely did so, then important common

questions arise: Can Aviva credibly establish that the 15-minute early departure period was

genuinely designed to (or in practice actually did) compensate employees for their pre- and post-

shift obligations? How was Aviva’s time-rounding procedure applied, and what were its effects

on aggregate compensation? In the end, liability turns on whether Aviva’s time editing and

rounding policies resulted in unpaid wages. Accordingly, common questions outweigh questions

affecting only individual putative class members and Rule 23(b)(3)’s predominance requirement

is satisfied as to the Rule 23 Subclasses.

b. Superiority

Plaintiffs assert that the superiority requirement is satisfied because no other actions

against Aviva alleging overtime violations are pending, all putative class members worked in a

facility in this district, and the class is narrowly defined to limit individual inquiries. (Doc. No.

27 at PageID# 363-64.) Plaintiffs also aver that manufacturing workers lack the resources to

bring individual suits against Aviva for overtime violations. (Id. at PageID# 364.) Again,

Defendants assert that individual inquiries necessitate that the superiority requirement is not met.

(Doc. No. 38 at PageID# 1460.)

To be certified, a class claim must be “superior to other available methods for fairly and

efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). District courts must consider:

the interests of class members in individually controlling the prosecution or defense of separate

actions; the extent and nature of other pending litigation about the controversy by members of

the class; the desirability of concentrating the litigation in a forum; and the difficulties in

managing the class action. Fed. R. Civ. P. 23(b)(3)(A)-(D). “The policy at the very core of the

class action mechanism is to overcome the problem that small recoveries do not provide the

incentive for any individual to bring a solo action prosecuting his or her rights.” Young, 693

F.3d at 545 (quoting Amchem Prod. Inc., 521 U.S. at 617).

Although it is a separate inquiry from predominance, superiority can be satisfied “even

though other important matters will have to be tried separately, such as damages or some

affirmative defenses particular to some individual class members.” Hicks v. State Farm Fire &

Cas. Co., 965 F.3d 452, 464 (6th Cir. 2020) (quoting 7A Wright, Miller & Kane, Federal

Practice and Procedure, § 1778, at 123-24). “Cases alleging a single course of wrongful

conduct are particularly well-suited to class certification.” Powers v. Hamilton Cnty. Pub.

Defender Comm’n, 501 F.3d 592, 619 (6th Cir. 2007); see also Sterling v. Velsicol Chem.

Corp., 855 F.2d 1188, 1197 (6th Cir. 1988) (acknowledging an “increasingly insistent need” to

certify class actions for lawsuits arising out of a “single course of conduct”).

There is no evidence to suggest that members of the Rule 23 Subclasses have an interest

in controlling the prosecution of separate actions. As noted by Plaintiffs, the underlying wages

at issue for each class member may be modest, diminishing the individual members’ ability or

incentive to pursue their own separate actions. See, e.g., Stephenson, 2021 WL 1253459, at *22.

There is no evidence of other pending litigation addressing this dispute. And there is no showing

that the Court will have difficulty in managing this class action. Superiority is satisfied.

For the foregoing reasons, Plaintiffs’ motion for Fed. R. Civ. P. 23 Class Certification is

GRANTED as to both the Rule 23 Time Editing Subclass and the Rule 23 Time Rounding

Subclass.

B. The FLSA Subclasses

1. Legal Standard for Conditional Certification

The FLSA was enacted with “broad remedial intent” aimed at addressing unfair methods

of competition in commerce that create “labor conditions detrimental to the maintenance of the

minimum standard of living necessary for health, efficiency, and general well-being of workers.”

Keller v. Miri Microsystems, LLC, 781 F.3d 799, 806 (6th Cir. 2015) (internal citation omitted).

With this purpose in mind, the FLSA provides that a collective action “may be maintained

against any employer . . . by any one or more employees for and on behalf of himself or

themselves and other employees similarly situated.” 29 U.S.C. § 216(b).

FLSA collective actions, unlike Rule 23 class actions, require each employee to “opt in.”

The opt-in requirement provides a gatekeeping function because only those similarly situated

employees are permitted to opt in. Once an employee has opted in, they become a party plaintiff,

unlike absent class members in a Rule 23 class action. O’Brien v. Ed Donnelly Enters., Inc. 575

F.3d 567, 583 (6th Cir. 2009), abrogated on other grounds by Campbell-Ewald Co. v. Gomez,

1365 S.Ct. 663 (2016).

In evaluating who is “similarly situated” for purposes of maintaining a collective action,

courts in this district generally use a two-stage approach. Comer v. Wal-Mart Stores, Inc., 454

F.3d 544, 546 (6th Cir. 2006). In the first stage, the court looks to the pleadings or some limited

discovery to determine “whether to conditionally certify the collective class and whether notice

of the lawsuit should be given to putative class members.” Arends v. Family Solutions of Ohio,

Inc., No. 1:18-cv-2017, 2019 WL 4417674, at *4 (N.D. Ohio Sept. 16, 2019) (citation and

quotation omitted). Generally, the standard that Plaintiffs must satisfy for conditional

certification is a lenient one. King v. Bailey’s Quality Plumbing & Heating, LLC, No. 5:20-cv-

571, 2021 WL 925809, at *3 (N.D. Ohio Mar. 11, 2021) (citing Barker v. Stark Cnty., 5:19-cv-

276, 2020 WL 1288807, at *2 (N.D. Ohio Mar. 18, 2020)). It is the lead plaintiff who bears the

burden of demonstrating that the proposed class members are similarly situated to him and that

his proposed FLSA collective action should proceed. See O’Brien, 575 F.3d at 584.

If a lead plaintiff successfully demonstrates that the proposed class members are

sufficiently similar to him, then the class is conditionally certified. Notice to potential class

members follows, as does full discovery. After this occurs, the Court moves to stage two. In

stage two, the Court conducts a thorough review of the record and makes a final determination

whether the opt-in class members are similarly situated to the lead plaintiff. Comer, 454 F.3d at

546; see also Marek v. Toledo Tool & Die, No. 3:16-cv-3005, 2017 WL 5891765, at *2-3 (N.D.

Ohio Nov. 29, 2017).

“In order to establish that other employees are similarly situated to the named plaintiff,

the named plaintiff need only show that his position [is] similar, not identical, to the positions

held by putative class members.” Pritchard v. Dent Wizard Intern. Corp., 210 F.R.D. 591, 595

(S.D. Ohio 2002) (internal quotation marks omitted); see also Comer 454 F.3d at 546-47.

Meaning, the lead plaintiff’s stated basis for a FLSA collective action accrued in approximately

the same manner as other potential class members.

Suffering from a single, FLSA-violating policy that is applied to all can be sufficient

proof that the plaintiffs are similarly situated to the collective. O’Brien, 575 F.3d at 585. It is

not required, though. Monroe v. FTS USA, LLC, 860 F.3d 389, 398 (6th Cir. 2017). Separately,

claims “unified by common theories of defendants’ statutory violations, even if proofs of these

theories are inevitably individualized and distinct,” may also support a determination that the

plaintiffs are similarly situated. Id. (rejecting defendant’s assertion that individual assessments

of each violation rendered conditional certification improper). As the Sixth Circuit recognized in

Monroe, sufficient proof of either one supports a determination that the lead plaintiff and

collective members are similarly situated. Id.

We are in stage one. And while a lead plaintiff can successfully demonstrate similarity

during stage one based on allegations in the complaint alone, when, as is the case here, the

parties have engaged in discovery on the issue of conditional certification, the lead plaintiff must

satisfy a slightly heightened “modest plus” standard. Weisgarber v. North Am. Dental Grp.,

LLC, No. 4:18-cv-2860, 2020 WL 1322843, at *2. (N.D. Ohio Mar. 20, 2020). While still more

lenient than what is required in stage two, the modest plus standard requires an elevated factual

showing that is “beyond what is alleged in the pleadings.” Id. Accordingly, the court looks for

“some progress as a result of the discovery” to ascertain the similarity between those who might

opt into the class and the representative plaintiff. See Sholtz v. Emergency Med. Transp., Inc.,

No. 5:20-cv-2328, 2021 WL 4756994, at *3 (N.D. Ohio April 22, 2021) (quoting Bentz v. UC

Synergetic LLC, No. 2:16-cv-2700, 2018 WL 4677786, at *2 (W.D. Tenn. Sept. 28, 2018)).

Under this modest plus standard, the court considers the parties’ evidence and other

factors typically addressed during stage two, including “(1) the disparate factual and employment

settings of the individual opt-in plaintiffs; (2) the various defenses available to defendants with

respect to individual plaintiffs; and (3) fairness and procedural concerns.” Weisgarber, 2020 WL

1322843, at *2 (citing Jungkunz v. Schaeffer’s Inv. Rsch., Inc., No. 1:11-cv-691, 2014 WL

1302553, at *7 (S.D. Ohio Mar. 31, 2014)).

The modest plus standard “is still meant to be lenient, resolving any gaps or doubts in the

evidence in favor of plaintiffs.” Sholtz, 2021 WL 4756994, at *3 (internal citation and quotation

omitted). During conditional certification, a court “does not generally consider the merits of the

claim, resolve factual disputes, or evaluate credibility.” Id. (citation omitted). This is true even

when the court, like this one, is evaluating conditional certification under the modest plus

standard. Weisgarber, 2020 WL 1322843, at *3 (citing Boyd v. Schwebel Baking Co., No. 4:15-

cv-871, 2016 WL 3555351, at *3 (N.D. Ohio June 30, 2016)).

The decision to conditionally certify a class is within the discretion of the trial court.

Comer, 454 F.3d at 546. If conditional certification is granted, solicitation of opt-in plaintiffs is

permitted, under court supervision. Cox v. Healthcare Services Group, Inc., No. 3:13-cv-293,

2013 WL 2443785, at *2 (N.D. Ohio June 4, 2013).

2. Discussion

Defendants’ attempts to defeat conditional certification are unavailing. At the outset,

their reliance on Plaintiff’s alleged failure to identify a single, FLSA-violating policy ignores

established case law explaining that a single, violating policy is just one way to support a finding

that the plaintiffs are similarly situated. And, as Plaintiffs point out, they have identified Aviva

policies that support such a showing of similarity, namely that all were subject to the same

rounding and editing policies. They even submit record evidence to support this assertion. (See,

Doc. No. 27-1 (demonstrating time editing); Doc. Nos. 27-23 & 27-24 (demonstrating time

rounding).)

For the FLSA Time Editing Class, members were subject to time editing practices that

allowed Aviva to edit shift times rather than account for the necessary pre-and post-shift work.

(See Doc. No. 27-1 (demonstrating biometric scan times were uniformly edited).) The FLSA

Time Rounding Class members saw their compensable time rounded to the nearest 10 minutes in

a way that is alleged to have consistently resulted in lost wages and unpaid overtime. (See, e.g.,

Doc. Nos. 27-23 & 27-24.) Plaintiffs rely on Aviva’s payroll records to demonstrate that Aviva

uniformly edited and rounded manufacturing employees’ time. (Doc. Nos. 27-1, 27-23 & 27-24;

see also AMI Dep. at 198:3-200:19 (confirming manufacturing employee’s earnings statement

did not include edited time).)

In attempting to defeat a finding that the plaintiffs’ claims are premised on common

theories of statutory violations, Defendants again attempt to direct this Court to where there are

differences among manufacturing employees. For the reasons stated above, the variations in

title, assignment, or position among manufacturing employees do not preclude a finding that

these employees share similar claims relative to editing and rounding practices.

With respect to the FLSA Time Editing Class, all manufacturing workers utilized the

biometric scanners to begin work, which the Paycom system captured. (AMI Dep. at 75:10-21.)

The Aviva “Time Reporting Policy” specifically required employees to be at their assigned work

area at the start of their shift. (AMI Dep. at 81:5-13, 144:18-21, 147:18-149:1.) Prior to the shift

starting time, Aviva manufacturing employees donned PPE. Although in some instances

employees were permitted to take their uniform home, they were not allowed to take home other

protective gear. (AMI Dep. at 144:22-145:11; Dorsey Dep. at 19:10-15, 21:24-22:15; Murphy

Dep. at 20:24-21:10, 31:4-33:9.) After donning PPE, the manufacturing workers walked to their

shift starting location or the shop floor. (Dorsey Dep. at 24:12-14; AMI Dep. at 83:22-84:3.)

Workers also regularly attended pre-shift meetings. (Murphy Dep. at 33:19-34:14; 53:8-14;

Dorsey Dep. at 24:22-26:17.) And after their shift, manufacturing workers were required to doff

their PPE and often attended post-shift meetings. (See Dorsey Dep. at 31:18-23; Murphy Dep. at

45:1-48:25.) Plaintiffs argue the evidence, and specifically the spreadsheet denoting punch time

changes, demonstrates that Aviva altered the time they clocked in and out to reflect the actual

shift starting and ending times and, accordingly, Plaintiffs were not paid for such activity. (See

Doc. No 27-1.)

As for the FLSA Time Rounding Class, Plaintiffs state that Aviva rounded manufacturing

employees’ time down unless they worked for a full eleven extra minutes. (AMI Dep. at 177:3-

178:2.) Aviva’s records demonstrate just that – when those employees did not work a full eleven

minutes, their time was rounded down. (See, e.g., Doc. No. 25-15 (demonstrating Dorsey was

not compensated when he failed to work a full eleven minutes); Doc. No. 27-23 (demonstrating

that an employee who worked 8 hours and 10 minutes was only compensated for 8 hours).)

Accordingly, Plaintiffs argue that the evidence shows that they are similarly situated to the FLSA

Time Rounding Class.

Remaining focused on individual considerations that defeat a finding that Plaintiffs are

similarly situated, Defendants seem to suggest that the identical numerical size of the proposed

FLSA Subclasses precludes a finding that members are similarly situated. This is not so.

Plaintiffs state that there are 130 employees who were subjected to Aviva’s time editing and time

rounding practices. The fact that the FLSA Subclasses are of the same size or comprised of the

same members is irrelevant to the determination of whether Aviva manufacturing employees

were subjected to the same time editing or rounding practices as Plaintiffs. What the subclass

definitions demonstrate, and what is supported by record evidence, is that manufacturing

employees, including Plaintiffs, may have been harmed by the same two distinct practices or

policies.

And in line with this point concerning the same 130 manufacturing employees in both

FLSA Subclasses, whether or not individualized determinations may later reveal that these

workers are not entitled to overtime pay based on some unique employment characteristic is not

a question to be answered at the first stage of conditional certification. Plaintiffs have submitted

evidence demonstrating that the time editing and rounding policies affected manufacturing

employees sufficiently similarly regardless of their job description. See, e.g., Lawrence v.

Maxim Healthcare Servs., Inc., No. 1:12-cv-2600, 2013 WL 5566668, at *2 (N.D. Ohio Oct. 9,

2013) (finding “the similarity of Plaintiff and the collective classes’ job description and duties

are not dispositive on whether to conditionally certify the collective action” where plaintiffs

demonstrated that the putative class suffered from an FLSA-violating policy.)

Regarding the FLSA Time Editing Class, Defendants argue that the time spent donning

and doffing equipment, even if compensable, is either de minimis or offset by Aviva’s end of

shift policy that allotted 15 minutes to remove protective gear. The Court recognizes that if the

time spent proves to be very short, the uncompensated time may be de minimis. White v. Baptist

Mem’l Health Care Corp., 699 F.3d 869, 873 (6th Cir. 2012) (citing Hill v. United States, 751

F.2d 810, 814 (6th Cir. 1984)) (“A de minimis rule applies when ‘the matter in issue concerns

only a few seconds or minutes of work beyond the scheduled working hours.’”). However, the

Court does not consider whether that time is de minimis at this juncture. See Roberts v. J.R.

Eng’g, Inc. No. 5:19-cv-00110, 2019 WL 5653340, at *7 (N.D. Ohio Oct. 31, 2019) (citing

Murton v. Measurecomp, LLC, No. 1:07-cv-3127, 2008 WL 5725631, at *5 (N.D. Ohio June 9,

2008)) (holding “it is well settled that no merits-based inquiry is appropriate” at the conditional

certification stage, which includes an “inquiry into the de minimis nature of any alleged

violations”). The same is true for Defendants’ arguments that the time is offset by its end-of-

shift policy. Slaughter v. Lincoln Elec. Co., No. 1:18-cv-2705, 2019 WL 4934508, at *7 (N.D.

Ohio Oct. 7, 2019) (“Defendant’s substantive arguments that its policies and procedures do not,

in fact, violate the FLSA go the merits of the instant action and are not properly considered at the

conditional certification stage.”).

Having determined that potential variations among Plaintiffs’ employment experiences

do not defeat a finding of “similarity,” the same conclusion is reached with respect to various

defenses available to Defendants. Common themes prevail. Challenges to editing and rounding

practices, while they may result in a different numerical calculation, are still the same. And it is

clear that resolving this wage dispute for all manufacturing employees in this case is in line with

stated fairness and procedural concerns. Monroe, 860 F.3d at 405.

Accordingly, Plaintiffs are similarly situated to the FLSA Time Editing Class and the

FLSA Time Rounding Class. The motion to conditionally certify the FLSA Subclasses is

GRANTED.

III. Appointment of Class Counsel

Plaintiffs seek to have their counsel appointed as class counsel under Rule 23(g). (Doc.

No. 27 at PageID# 366-67.) Defendants did not oppose this request. (See Doc. No. 38.) Court

approval of class counsel is necessary. Fed. R. Civ. P. 23(g). As discussed above, Plaintiffs’

counsel has: identified and investigated the claims of this case; litigated collective wage-and-

hour cases as well as class actions; demonstrated knowledge of the applicable laws; and shown a

willingness to commit the necessary resources to prosecute the claims of the Rule 23 Subclasses.

Fed. R. Civ. P. 23(g)(1)(A)(i)-(iv). Accordingly, Plaintiffs’ counsel of record meets the

requirements of Rule 23(g). Plaintiffs’ motion for the appointment of class counsel is

GRANTED.

IV. Notice to Class Members and Potential Opt-In Class Members

Plaintiffs move for approval of the proposed combined class/collective action notice

(Doc. No. 27-7), proposed consent form (Doc. No. 27-8), and proposed cover email to be sent to

potential class members (Doc. No. 27-9). The Court ORDERS Plaintiffs and Defendants to meet

and confer to determine whether a mutually agreeable class/collective member notification

process can be submitted to the Court for approval. The Court ORDERS the parties to report to

the Court within 21 days with jointly approved forms or by specifying for the Court areas of

disagreement regarding the proposed notice, consent form, or cover email.

V. Conclusion

For the foregoing reasons, Plaintiffs’ motion for Fed. R. Civ. P. 23 Class Certification,

Conditional Certification Pursuant to 29 U.S.C. § 216(b), and Appointment of Class Counsel is

GRANTED. This Court certifies the Rule 23 Time Editing Class pursuant to Fed. R. Civ. P. 23

as defined as:

All present and former hourly manufacturing employees of Aviva Metals, Inc. at

Aviva Metals, Inc.’s 5311 West River Rd. N., Lorain, OH 44055 location during

the period of September 8, 2018 to the present who (1) worked more than forty (40)

hours during one or more workweeks, and (2) were not paid for all overtime hours

worked by virtue of having their time edited.

This Court certifies the Rule 23 Time Rounding Class pursuant to Fed. R. Civ. P. 23 as defined

as:

All present and former hourly manufacturing employees of Aviva Metals, Inc. at

Aviva Metals, Inc.’s 5311 West River Rd. N., Lorain, OH 44055 location during

the period of September 8, 2018 to the present who (1) worked more than forty (40)

hours during one or more workweeks, and (2) were not paid for all overtime hours

worked by virtue of having their time rounded pursuant to Aviva Metals, Inc.’s 10-

minute rounding policy.

This Court conditionally certifies the FLSA Time Editing Class pursuant to 29 U.S.C. § 216(b) as

defined as:

All present and former hourly manufacturing employees of Aviva Metals, Inc. at

Aviva Metals, Inc.’s 5311 West River Rd. N., Lorain, OH 44055 location during

the period of September 8, 2017 to the present who (1) worked more than forty (40)

hours during one or more workweeks, and (2) were not paid for all overtime hours

worked by virtue of having their time edited.

This Court conditionally certifies the FLSA Time Rounding Class pursuant to 29 U.S.C. § 216(b)

as defined as:

The “FLSA Time Rounding Class”: All present and former hourly manufacturing

employees of Aviva Metals, Inc. at Aviva Metals, Inc.’s 5311 West River Rd. N.,

Lorain, OH 44055 location during the period of September 8, 2017 to the present

who (1) worked more than forty (40) hours during one or more workweeks, and (2)

were not paid for all overtime hours worked by virtue of having their time rounded

pursuant to Aviva Metals, Inc.’s 10-minute rounding policy.

The Court appoints and designates Plaintiffs’ counsel, attorneys Joseph F. Scott, Ryan

Winters, and Kevin McDermott II, all of Scott & Winters Law Firm, as class counsel. Plaintiffs

Donald Dorsey and Craig Murphy are the representatives for the Rule 23 Subclasses and FLSA

Subclasses.

Plaintiffs and Defendants are ordered to meet and confer within 21 days of the date of

this Order and submit to the Court jointly approved forms or specify the areas of disagreement

regarding the proposed notice, consent form, or cover email.

Defendants shall, within 21 days of the date of this Order, provide plaintiffs with a list of

the full names and last known home addresses of each current and former employee fitting the

class descriptions, their dates of employment, and their last known personal email addresses.

The list shall be produced electronically and in hard copy. This list should not be filed with the

Court.

IT IS SO ORDERED. ____________________________________

BRIDGET MEEHAN BRENNAN

Date: September 28, 2022 UNITED STATES DISTRICT JUDGE