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Piazza v. Associated Wholesale Grocers Inc.

United States District Court, E.D. Louisiana

August 3, 2018

MICHAEL PIAZZA ET AL.
v.
ASSOCIATED WHOLESALE GROCERS INC.

         SECTION: H (4)

          ORDER AND REASONS

          JANE TRICHE MILAZZO UNITED STATES DISTRICT JUDGE.

         Before the Court are Plaintiff's Motion for Conditional Certification and Judicial Notice (Doc. 52) and Defendant's Motion for Protective Order (Doc. 43). For the following reasons, the motions are DENIED.

         BACKGROUND

         This is a collective action for unpaid wages under the Fair Labor Standards Act (“FSLA”), 29 U.S.C. § 201 et. seq. Defendant Associated Wholesale Grocers, Inc. (“AWG”) is a national food wholesaler that operates a warehouse complex in Pearl River, Louisiana as part of its distribution network. Plaintiff Michael Piazza worked for Defendant at the Pearl River warehouse as a laborer. Plaintiff alleges the following: His job duties included “unloading product from delivery trucks and placing the products in the warehouse, repackaging product pallets to prepare for shipment, and loading delivery trucks with products.”[1] Plaintiff was regularly scheduled to work eight hours per day for a total of 40 hours per week, but routinely began work before his scheduled start time, ended work after his scheduled stop time, and worked through his scheduled breaks. As a result, Plaintiff regularly worked 60 to 70 hours per week, but was prevented by Defendant from recording this additional time and therefore was not compensated for it. Defendant also had a policy of automatically deducting 30 minutes each day for a lunch break, rather than having workers clock in and out, despite the fact that Plaintiff rarely took a break of more than a few minutes.

         Defendant submits evidence that work at its Pearl River facility is divided into two shifts: inbound and outbound. During the inbound shift, Defendant's employees receive shipments from various vendors and place them into their proper locations in Defendant's warehouse. During the outbound shift, employees performing the role of selector locate, select, and stack onto pallets goods that customers have ordered. Selectors then move a completed order to the loading dock area where employees performing the role of loader place the pallets into delivery trucks. Forklift operators assist with the selection and loading processes.

         Selectors on the outbound shift are eligible for a unique compensation policy. Selectors who achieve a productivity level of 225 cases selected per hour may be guaranteed the compensation of a 40-hour work week even if they work fewer hours. Before each shift a manager posts the number of cases that represent a selector's fair share of the total for the day. If the selector pulls that many cases before the shift is over, the selector may leave work early and still be compensated at the end of the week for a full 40 hours.

         Defendant also submits a copy of its employee handbook and the declaration of an employee working in human resources. The handbook states in relevant part,

All Non-Exempt employees must swipe their badges when beginning work, when beginning lunch break, when returning from lunch and when leaving work. . . . If an employee forgets to clock in or out, he or she must immediately notify the employee's immediate supervisor or manager so that proper action can be taken to record the proper hours worked. Managers and supervisors are responsible for the accuracy and integrity of the timekeeping process.
All Non-Exempt employees must take lunch away from their desks. No. such employee is allowed to work through his or her lunch period except in rare instances with specific approval from their immediate supervisor or manager. Non-Exempt employees are not permitted to work “off the clock.” If any member of management instructs you to work “off the clock” to avoid overtime or for any other purpose, you must report it immediately to the Division Director of Human Resources Department or the Corporate Vice President of Human Resources.
All overtime work by Non-Exempt employees must be authorized in advance by their immediate supervisor or manager. Further, such employees are not permitted to work additional time (such as coming in early, working through lunch or remaining late) without prior approval of their immediate supervisor or manager. Although working unapproved overtime is grounds for appropriate discipline, all employees will, and must, be paid for all actual hours worked.[2]

         Defendant admits that it configured its employee time management system to automatically deduct 30 minutes for lunch. It also submits a declaration from a warehouse supervisor stating that Defendant has a policy requiring any employee that did not take a lunch break to report that fact to a supervisor and fill out a form.[3] The supervisor would then make a correction in the timekeeping system.[4]

         On October 7, 2017, Plaintiff filed his Complaint in this Court on behalf of himself and others similarly situated.[5] As of July 31, 2018, 33 other plaintiffs have filed opt-in forms with the Court. Plaintiff alleges that the opt-in plaintiffs worked similar hours as forklift operators, lead men, and general laborers at the same Pearl River facility.

         Plaintiff now moves the Court to conditionally certify a class to proceed as a collective action. Plaintiff seeks certification of a class including, “All individuals employed by AWG at any point from October 7, 2014 to the present, who were compensated on an hourly wage basis, and had 30 minute lunch breaks automatically removed from their recorded work hours.”[6] Plaintiff further moves the Court to order Defendant to produce contact information of potential opt-in plaintiffs, to approve the form of notice, to allow the notice to be sent by multiple means, to set the deadline for filing consent forms at 60 days from the mailing of notice, and to approve the use of a third-party administrator. Defendant opposes the Motion.

         Additionally, Defendant moves for a protective order prohibiting certain communications to potential class ...


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