Opinion
Civil Action No. 09-85J.
July 1, 2009
ORDER
On May 14, 2009, the Court afforded the parties an opportunity to develop a mutually acceptable FLSA notice letter. See Order (Doc. 104) at 11. The Court directed that, should those efforts fail, "opposing counsel shall cross-file proposed notice forms and the Court [would] determine which one is most appropriate, with or without modification." Id. The parties could not reach agreement, and they have cross-filed proposed notice forms and supporting memoranda. See Defs.' filings (Docs. 145 146); Pls.' filings (Docs. 147-149).
The Court enjoys broad discretion in determining the form and specific content of an FLSA notice. Summa v. Hofstra Univ., 2008 WL 3852160, *7 (E.D.N.Y. Aug. 14, 2008) (citation omitted). Having reviewed the parties' cross-proposals, the Court finds them to contain language unduly beneficial to the potential legal interests of the submitting parties. Given the need to provide fair, accurate, and understandable notice to putative collective action members, the Court will adopt a modified notice form that balances the parties' interests, and accounts for their objections to the extent they are persuasive.
At the onset, the Court notes that Defendants have objected to nearly every provision in Plaintiffs' proposed notice form. See Defs.' Br. (Doc. 146) at 3-10. Although the Court has considered each of Defendants' objections, commenting on them individually would not be a wise expenditure of judicial resources. A few overarching comments are, however, warranted.
First, the Court disagrees with Defendants that the Federal Judiciary Center's ("FJC's") model notice forms, relied upon by Plaintiffs, are inappropriate reference points in an FLSA collective action. See generally id. at 2. The FJC's model forms were developed through extensive research, commentary, and non-lawyer testing to promote "the plain language drafting" of class notice forms. See FJC's webpage at http://www.fjc.gov/public/home.nsf/autoframe?openformurl_r=pages/376; see also id. ("[c]ombining information from [a] pilot test with principles gleaned from psycholinguistic research," FJC drafted notices for review by "a lawyer-linguist to evaluate them for readability and [it] redrafted the notices in light of his suggestions"). The FJC's forms have been publicized "to demonstrate ways that drafters can use clear, simple, `plain language' and design in class action notices," and, in actual cases, attorneys and judges are encouraged to "adapt the illustrative notice[s] to the unique factual, legal, and procedural circumstances of their case." Id.
The format and content of the FJC's model notices facilitate the communication of complex legal issues in an easily readable and understandable fashion. The Court rejects Defendants' suggestion that the model forms invoke an "alarmist, eye-catching format" designed to warn true "class action" (as opposed to collective action) members of the potential expiration of their legal rights. See Defs.' Br. at 2. Rather, the FJC's stated goals are to enhance readability and recipient comprehension and, having compared Defendants' proposed format to the ones adopted by the FJC (and Plaintiffs), the Court agrees that the latter are better suited to those ends.
Along the same lines, Defendants' proposed notice form is saddled with technical details making the document difficult to follow, or maintain attention of, even those well-versed in the law. See, e.g., Doc. 145-2 at 1 (identifying all named-Defendant entities and indicating that recipient must have worked for one of those entities, despite fact that list of potential collective action members/recipients was generated from Defendants' own records); compare id. (dropping footnote explaining that only those Mercy Hospital employees who worked after March 1, 2008 were subject to notice) with Order dated Jun. 17, 2009 (Doc. 140) at 1-4 (confirming that Mercy Hospital was not required to produce information regarding employees who worked at Hospital before March 2008); compare also id. at 2 ("If you are or have been employed by one of the UPMC-affiliated entities named above in an hourly-paid or salaried non-exempt position, and you were not paid at the rate of 1.5 times your regular rate for all hours worked in excess of forty (40) in any workweeks during the last three years because your hours worked were reduced for a meal break over which you actually worked, then you may make a claim to recover unpaid overtime wages and liquidated damages (double the amount of the unpaid wages) in this lawsuit.") (two footnotes omitted) with Order dated May 15th at 7-8 (rejecting Defendants' argument that, for purposes of FLSA meal break litigation, overtime or minimum wage violations must be proved/resolved at conditional certification stage).
These are just a few examples of the complications presented by Defendants' approach, and, for the reasons identified above, the Court will use Plaintiffs' proposed notice form as a starting point.
Otherwise, the modifications made by the Court are too substantial to address on a line-by-line basis. Generally, the undersigned has removed language suggesting that UPMC's liability is undisputed or already has been established; the content has been modified to reflect greater neutrality; references to the "Class" and "Class Members" have been omitted to dispel the potential misperception that a class action, as opposed to a collective action under the FLSA, has been certified; Defendants' legal positions in this case have been clarified; a sixty-day "opt in" period is established; Plaintiffs' proposed "Information Sheet" is made optional for those recipients who elect to join the action; and references to the website of Plaintiffs' counsel is omitted from the Court-endorsed notice.
The undersigned joins Chief Judge Ambrose in concluding that a sixty-day opt in period is reasonable. See Kuznyetsov v. West Penn Allegheny Health Sys., Inc., 2009 WL 1515175, *6 (W.D. Pa. Jun. 1, 2009) (holding same).
The preceding discussion is not intended to reflect an exhaustive explanation of all the changes adopted by the Court through an exercise of its discretion.
Attached as Appendix "A" to this Order is a final version of the notice content approved by the Court. Within seven calendar days of this Order, Plaintiffs shall file a proposed amended notice, containing the language in Appendix A, in the same format utilized in its current proposed notice form. Any attempts to modify the substance or format approved herein will be met with the Court's strong disapproval.
For all of these reasons, Defendants' Amended Motion for Approval of Form of Proposed Notice ( Doc. 145) is DENIED, and Plaintiffs' Motion for Approval of Notice ( Doc. 147) is GRANTED, consistent with rulings above.
IT IS SO ORDERED.
APPENDIX "A" FINAL VERSION OF NOTICE CONTENT APPROVED BY COURT
NOTICE OF LAWSUIT WITH OPPORTUNITY TO JOIN
If you worked for UPMC as an hourly employee in the last three years, a lawsuit may affect your rights.
A court authorized this notice. This is not a solicitation from a lawyer.
• Employees have sued UPMC and related entities claiming UPMC failed to pay overtime as a result of UPMC not compensating hourly-paid employees for meals breaks during which the employees performed at least some work for their employer.
• The Court has allowed the lawsuit to be conditionally certified as a collective action on behalf of employees who have been subject to automatic meal break deductions and who have or may have worked through or during unpaid meal breaks without compensation.
• The Court has not decided whether UPMC did anything wrong. There is no money available now, and no guarantee there will be. However, your legal rights may be affected, and you have a choice to make now:
YOUR LEGAL RIGHTS AND OPTIONS IN THIS LAWSUIT ASK TO BE INCLUDED
Join in this lawsuit. Await the outcome. Give up right to sue separately.
By joining, you keep the possibility of getting money or benefits that may come from a trial or a settlement. But, you give up any rights to sue UPMC separately about the same legal claims in this lawsuit.
DO NOTHING
Do nothing. Get no benefits from it. Keep right to sue separately.
If you do nothing and money or benefits are later awarded, you won't share in those. But, you keep any rights to sue UPMC separately about the same legal claims in this lawsuit.
• Your options are further explained in this notice.
BASIC INFORMATION
1. Why did I get this notice?
On April 2, 2009, a group of former and/or current employees of UPMC filed a lawsuit in the United States District Court for the Western District of Pennsylvania (Civil Action No. 09-85J), claiming, among other things, that they were hourly employees who were not compensated for work performed during meal breaks. UPMC's records show that you currently work, or previously worked, for UPMC in an hourly-paid position.
This notice informs you of the existence of a collective action lawsuit in which you may become a member. It also explains what you need to do to participate, or not participate, and how your rights may be affected.
On May 14, 2009, the Honorable Cathy Bissoon, United States Magistrate Judge for the Western District of Pennsylvania, authorized the sending of this Notice to inform you of your rights in connection with this lawsuit.
2. What is a collective action and who is involved?
In a collective action lawsuit, two or more people who have similar claims against an employer are permitted to assert those claims in a single lawsuit. The people who decide to participate in the lawsuit are called the plaintiffs. The employer they sued (in this case UPMC) is called the defendant. One Court resolves the issues for everyone in the collective action — except for those people who choose not to join.
In this case, the Court has determined preliminarily that hourly employees, who were subject to automatic meal period deductions and who are alleged to have worked through or during unpaid meal breaks, without compensation, during the past three years, may have sufficiently similar claims that it makes sense to send this notice of rights to such employees.
3. What does the lawsuit complain about?
In the lawsuit, the plaintiffs claim that UPMC had a practice of automatically deducting 30 minutes from employees' workdays for meal periods, even when employees performed compensable work during meal periods.
The plaintiffs allege that UPMC's practices, as described above, did not comply with the Fair Labor Standards Act ("the FLSA"), and plaintiffs claim they are owed unpaid overtime, as well as additional damages that may be allowed under the law and attorneys' fees.
4. How does UPMC respond?
UPMC claims that its policy was to credit time worked during meal breaks, and that employees were instructed to notify their unit timekeepers or to cancel the deduction if they worked during a meal break. Otherwise, UPMC asserts that its policies in all respects did not violate the FLSA.
5. Has the Court decided who is right?
The Court has not decided whether UPMC or the plaintiffs are correct. By conditionally permitting the collective action and issuing this Notice, the Court is not suggesting that the plaintiffs will win or lose this case. The plaintiffs must prove their claims. Therefore, there is no money or benefits available now.
Once people have had the chance to opt in, the Court will decide whether people who have opted in may participate in this collective action. Only people "similarly situated" to the plaintiffs may participate in this collective action. To determine whether you are indeed a proper member of the collective action, UPMC will likely ask the Court to engage in a review of the circumstances of your employment with UPMC, taking into account factors such as employment setting, recording and payment for time worked, any defenses asserted against you by UPMC, and other issues.
YOUR RIGHTS AND OPTIONS
6. How do I join the collective action?
To participate in this lawsuit, you need to fill out the enclosed form entitled "Consent to Join" and mail it in the enclosed self-addressed stamped envelope to the attorneys for the plaintiffs. It is entirely your own decision whether or not to join this lawsuit.
The signed Consent form must be postmarked by [60 days from mailing of this Notice]. If your signed Consent form is not postmarked by [60 days from mailing of this Notice], you may be prohibited from participating in any recovery obtained against UPMC in this lawsuit.
If you decide to join this suit, you will be bound by the settlement or judgment, whether it is favorable or not. If there is a favorable resolution, either by settlement or judgment, and you qualify under the law, you will be entitled to some portion of the recovery.
You also may, but are not required to, complete the enclosed form entitled, "Information Sheet" and return it to counsel for the plaintiffs. Should you elect to join this collective action, the Information Sheet will provide your lawyers basic contact information and information regarding the dates and locations of your employment with UPMC. The plaintiffs' lawyers represent to the Court and you that any personal information you may provide will be used for the limited purpose of pursuing this lawsuit.
7. What if I do nothing?
If you do nothing, you will not participate in the collective action. You will not be bound by any decision on the federal overtime suit. Therefore, you will not be entitled to any recovery should there be any for those claims.
Should you not join this lawsuit, you also are free to independently retain your own counsel and file your own individual lawsuit, subject to any defenses that might be asserted. You should be aware that FLSA claims are limited to a two or three-year statute of limitations, and delay in joining this action, or proceeding separately, may result in some or all of your claims expiring under the law.
8. If I join, will there be any impact on my employment?
Federal law prohibits UPMC from discouraging or in any other way discriminating against you because you have exercised your rights under the FLSA. Such conduct would be unlawful, and you are entitled to damages should a court determine that UPMC took any action against you for joining this lawsuit.
9. Do I have to do anything to help out with the lawsuit once I join?
The lawyers will handle most of the presentation of the case. From time to time, your lawyers will ask you for information and you will need to provide them with that information. While this suit is proceeding, you also may be required to respond to written questions, participate in depositions and/or testify in court. If you are asked to give information, plaintiffs' counsel has agreed to work with you so that the process is as convenient for you as possible.
THE LAWYERS REPRESENTING YOU
10. Do I have a lawyer in this case?
The law firm of Thomas Solomon LLP is the counsel representing the named plaintiffs in this action.
Unless you choose another lawyer, these attorneys would represent you in the action. You can contact the plaintiffs' attorneys at:
J. Nelson Thomas, Esq.
Patrick J. Solomon, Esq.
THOMAS SOLOMON LLP
693 East Avenue
Rochester, NY 14607
1-877-272-4066
11. Should I get my own lawyer?
You do not need to hire your own lawyer because Thomas Solomon LLP has agreed to work on your behalf. You may hire a different lawyer if you wish to do so. You would be responsible for making the arrangements to hire that lawyer, including any fee arrangements. If you decide to have another attorney represent you, that attorney will need to draft a consent form that you should then mail to Thomas Solomon LLP.
12. How will the lawyers be paid?
If the attorneys get money or benefits for the employees, they may ask the Court for fees and expenses. You won't have to pay these fees and expenses. If the Court grants the lawyers' request, the fees and expenses would be either deducted from any money obtained or paid separately by UPMC.
If the Plaintiffs obtain money or benefits as a result of the trial or a settlement, you will be notified about how to participate. We do not know how long this will take.
CONSENT TO JOIN
By my signature below, I represent to the Court that I am a present or former hourly employee of UPMC.
I understand that this lawsuit is brought under the Fair Labor Standards Act, as amended, 29 U.S.C. §§ 201- 209, and I hereby consent, agree and opt-in to the above-captioned lawsuit that has been filed seeking payment of unpaid wages, and related relief against UPMC.
I authorize the representative plaintiffs or plaintiffs' counsel to file this consent with the Clerk of the Court. Unless I opt to retain separate counsel of my own choice and at my own expense, I hereby further authorize the named plaintiffs to make decisions on my behalf concerning the litigation, the method and manner of conducting this litigation, and all other matters pertaining to this lawsuit, including any settlement, and I further agree to be bound by any judgment entered by the Court or any settlement of this action.
Signature
Print Full Legal Name
Date
INFORMATION SHEET
Please keep us informed of any changes to your contact information
(PLEASE FILL OUT COM PLETELY)
Name _____________________________________________________ Address ___________________________________________________ City _______________________________________ State_____ Zip Code_________ Social Security Number xxx-xx_____ Home Phone (__ __ __ ) — __ __ __ — __ __ __ __ E-Mail Address _______________________________________ Cell Phone (__ __ __ ) — __ __ __ — __ __ __ __ Any personal identification information that you provide to us will only be used to protect your interests and the class members in this lawsuit.I am/was employed by UPMC. [check box]
I am/was employed by UPMC at the following locations:
Name of Health Care Institution — City/State Start Date End Date Name of Health Care Institution — City/State Start Date End Date Name of Health Care Institution — City/State Start Date End Date Please Return ToUPMC Class Action Lawsuit
Thomas Solomon LLP
693 East Avenue
Rochester, New York 14607
If you have any additional questions, feel free to contact the law firm above at:
info@hospitalovertime.com OR
1.877.272.4066 (telephone M-F 8:30A-5:30P ET) OR
1.877.272.4088 (facsimile)
Mailing Address
Notice to current or former hourly employees of UPMC
Jane Q. Class Member
123 Anywhere Street
Anytown, ST 12345-1234 (sample)
Return Address
Plaintiffs' law firm mailing address (no website address)