Opinion
01 C 8969
May 2, 2002
On March 28, 2002, plaintiff Linda Bontempo, on behalf of herself and all other plaintiffs similarly situated known and unknown, filed an amended complaint against defendants Westwood One Broadcasting Services, Inc., d/b/a Shadow Broadcast Services and Metro Networks Communications Limited Partnership, d/b/a Metro Networks and Shadow Broadcast Services. Before the court is plaintiff's motion to begin "opt-in" notice to members of the plaintiff class in this action pursuant to § 216(b) of the FLSA. For the following reasons, plaintiff's motion is granted.
The requirements for a class or collective action under the FLSA are governed by 29 U.S.C. § 216(b). Under § 216(b), class actions under the FLSA can only be maintained when and if potential claimants opt in. See 29 U.S.C. § 216(b); Vazquez v. Tri-State Management Co., Inc., 2002 WL 58718 at *2 (N.D.Ill. January 14, 2002); Allen v. Marshall Field Co., 93 F.R.D. 438, 4 (N.D. Ill. 1982). In contrast, class actions under Rule 23 bind all members of the class unless they opt out and Rule 23's class certification requirements do not apply to FLSA class actions. King v. General Elec. Co., 960 F.2d 617, 621 (7th Cir. 1992). Rather under the FLSA, the representative need only show that the plaintiffs are similarly situated. 29 U.S.C. § 216(b). The FLSA and regulations, however, do not define similarly situated. One court defined similarly situated as "perform[ing] the same type of duty as" the named plaintiff. Pfahler v. Consultants for Architects, Inc., 2000 WL 198888 at *2 (N.D.Ill. Feb. 8, 2000). Other courts have held that a named plaintiff can show that the potential claimants are similarly situated "by making a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law." Vazquez v. Tri-State Management Co., Inc., 2002 WL 58718 at *2 (N.D.Ill. January 14, 2002); Realite v. Ark Rests. Corp., 7 F. Supp.2d 303, 306 (S.D.N.Y. 1998) (citations omitted). District courts have the discretionary power to authorize notice of the action to potent plaintiffs. Woods v. New York Life Ins. Co., 686 F.2d 578, 580 (7th Cir. 1982).
Defendants argue that plaintiff has failed to make a modest factual showing that an FLSA violation occurred and that similarly situated plaintiffs were victims of a common policy or plan that violated the law. Under the FLSA, employees who are "outside sales employees" are exempted from the FLSA overtime provisions. The regulations interpreting the FLSA define "outside salesman" any employee "who is employed for the purpose of and who is customarily and regularly engaged away from his employer's place or places of business" and who does not devote more than 20% of time to activities other than outside sales. 29 C.F.R. § 541.50 Plaintiff alleges that she was employed by defendants as an account executive and her job responsibilities as an account executive were essentially those of an inside sales representative. Her principal duty was to sell radio advertisement air time to commercial customers. Plaintiff states in her declaration that the majority of her work time was spent making such sales and generating sales activities from her desk in defendants' Chicago office. Defendants contend that plaintiff has not established she was an inside sales person because plaintiff admitted she made sales calls outside the office and, according to plaintiff's supervisor, on-site meetings and presentations at a prospective customer's place of business are a key job requirement for account executives. Defendant also presented three of plaintiff's weekly sales reports indicating that plaintiff made certain sales calls outside of defendants' office during that time period. While making sales visits and calls outside the office may be an important job duty of an account executive, plaintiff need only make a modest factual showing that she was an inside sales representative for the purposes of the opt-in provision of the FLSA and this court finds that plaintiff in this case has satisfied this burden.
It is undisputed that defendants employ others with the job title "account executive" in its various office in the United States including its Chicago office where plaintiff worked. It is further undisputed that it was not defendants' policy or practice to pay account executives overtime wages for the hours they work in excess of forty in individual work weeks; instead, defendants paid account executives on a draw against commission basis. Defendants allege that despite the identical job titles, plaintiff is not similarly situated to other account executives because other account executives did not share plaintiff's business practice of conducting sales predominantly as an inside sales representative. The "similarly situated" standard under § 216(b) is less stringent than the requirements under Federal Rule of Civil Procedure 23(b)(3). Garza v. Chicago Transit Authority, 2001 WL 503036 at *2 (N.D.Ill. May 8, 2001); see also King v. General Elec. Co., 960 F.2d 617, 619 (7th Cir. 1992) (opt-in class action procedure preempts class-action procedure under Federal Rule of Civil Procedure 23(a)). Again, plaintiff need only make a modest factual showing sufficient to demonstrate that plaintiff and potential plaintiffs together were victims of a common policy or plan that allegedly violated the FLSA. This court finds that plaintiff has satisfied the lower threshold burden in this case to proceed with opt-in notice to potential class members.
Accordingly, plaintiff's motion to begin opt-in notice is granted. The proper class of plaintiffs is all employees who are or have been employed by defendants as an account executive within the prior three years from the date the employee files his or her Notice of Consent To Become A Party Plaintiff form, whose job duties included selling radio air time to defendants' customers and who may have worked more than 40 hours in any one or more individual work weeks. Defendants are ordered to produce to plaintiff the names and home addresses of all potential class members by May 31, 2002. Defendants are ordered to refrain from any and all forms of communication with current and prospective class members concerning the merits and issues of their FLSA claims. Counsel are ordered to review the proposed Notice of Lawsuit and Notice of Consent form attached to this minute order and file any objection by May 14, 2002. This case is set for report on status and approval of Notice of Lawsuit and Notice of Consent form at 9:00 a.m. on May 16, 2002. Finally, this court urges the parties to discuss settlement.