govinfo:USCOURTS-moed-4_21-cv-00834-0

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 UNITED STATES DISTRICT COURT 
 EASTERN DISTRICT OF MISSOURI 
 EASTERN DIVISION  
 
DANIELLE PECK,  ) 
individually and on behalf of a class of others ) 
similarly situated, ) 
) 
               Plaintiff,  ) 
) 
          vs. ) No. 4:21CV 834 RLW 
) 
MERCY HEALTH, MERCY HEALTH  )  
FOUNDATION, and MHM SUPPORT  ) 
SERVICES, ) 
) 
               Defendants. ) 
  
 MEMORANDUM AND ORDER 
 
This matter is before the Court on Plaintiff ’s Motion for Conditional Collective 
Certification and Court-Supervised Notice to Potential Opt -In Plaintiffs Pursuant to 29 U.S.C. § 
216(b) (ECF No. 37).  This Motion is fully briefed and ready for disposition.  The Court grants 
Plaintiff’s Motion, in part, and allows conditional collective certification.    
BACKGROUND 
Mercy is a health system, with locations in Missouri, Oklahoma, Arkansas, and Kansas. 
Plaintiff Danielle Peck (“Plaintiff”) contends that Defendants are joint employers and responsible 
for the policy that automatically resulted  in employees  not receiving the ir full compensation.  
Defendants have a policy whereby 30 minutes is automatically deducted as a “meal break” from 
the employees’ time worked for each shift. Plaintiff argues that employees often worked through 
their shifts, without taki ng “ bona fide meal breaks.”  Plaintiff acknowledges that employees 
sometimes had their automatically -deducted pay restored.  However, Plaintiff contends that the 
“de facto policy and practice [was] that time should be deducted regardless of whether hourly-paid 
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workers worked through their purported meal br eaks.”  (ECF No. 37- 1 at 12).   Plaintiff seeks 
the following relief: 
(1) Conditionally certifying a Fair Labor Standards Act (“FLSA”) Collective, defined as:  
All hourly-paid employees of the Defendants who were or are subject to the 
automatic meal break deduction policies at any time on or after three (3) years 
prior to the date on which the Court approves the collective certification (the 
“Collective”); 
 
(2) Directing Defendants to identify all putative members of the Collective by providing 
their names, last known addresses, dates and locations of employment, job titles, phone 
numbers, and e -mail addresses, in an electronic and importable format, such as  an 
unrestricted Excel spreadsheet, within fourteen (14) calendar days of the entry of this 
Order; 
(3) Approving Plaintiff’s proposed “Notice of Right to Join Lawsuit” and “Consent to Join 
Lawsuit” Form (Exhibit A) and proposed language of the email and text message 
(Exhibits B-C) to be sent to the putative members of the Collective;  
(4) Authorizing Plaintiff’s Counsel to direct a claims administrator to maintain a case 
website displaying the text of the approved “Notice of Right to Joint Lawsuit” and 
“Consent to Joint Lawsuit” forms, through which members of the Collective may sign 
their Consent to Join forms electronically; 
(5) Authorizing Plaintiff’s counsel to disseminate the approved notice to the putative 
members of the Collective via U.S. Mail, e -mail and text message, and to send a 
reminder notice via e-mail and text message halfway through the notice period; and  
(6) Affording the putative members of the Collective sixty (60) days from the date the 
notice is issued to join this case by completing either paper or electronic consent forms.   
(ECF No. 37).  
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DISCUSSION 
A. Plaintiff’s Allegations 
The FLSA provides that “[a]ny employer who violates the provisions of … section 207 of 
this title  shall be liable to the  employee or employees affected in the amount of their unpaid 
minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional 
equal amount as liquidated damages .” 29 U.S.C. §219(b).  An action to recover such damages 
may be maintained “by any one or more employees for and on behalf of himself or themselves and 
other employees similarly situated.” Id. ; Kayser v. Sw. Bell Tel. Co., 912 F. Supp. 2d 803, 811 
(E.D. Mo. 2012). 
As stated, Plaintiff alleges that she meets the standard for conditional certification because 
the hourly-paid workers were subject to Defendants’  company-wide policy and practice, which 
automatically deducted at least thirty (30) minutes of pay for a “meal break” that the employees 
did not take.  Multiple workers provided declarations to support these alleged violations. (ECF 
Nos. 37-5 – 37-18).  As of the time of the filing of the Motion for Conditional Class Certification, 
14 opt-in Plaintiffs—eleven in Missouri, two in Arkansas, and one in Oklahoma—had filed written 
consent forms.  (ECF Nos. 25-27, 3-32).  
B. The Two-Step Process for Collective Actions
District courts within the Eighth Circuit conduct a two-step analysis to determine whether 
employees are “similarly situated” under § 216.  Beasley v. GC Services LP , 270 F.R.D. 442, 444 
(E.D. Mo. 2010); Littlefield v. Dealer Warranty Services, LLC , 679 F.Supp.2d 1014, 1016 (E.D. 
Mo. 2010); Ford v. Townsends of Ark., Inc., No. 4:08CV00509BSM, 2010 WL 1433455, at *3 
(E.D. Ark. Apr. 9, 2010) .  Under the two- step process, plaintiffs first seek conditional 
certification, and if granted, the defendant may later move for decertification after the opt-in period 
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has closed and all discovery is complete. Kayser v. Sw. Bell Tel. Co., 912 F. Supp. 2d 803, 812 
(E.D. Mo. 2012); Davis v. NovaStar Mortg., Inc., 408 F.Supp. 2d 811, 815 (W.D. Mo. 2005). The 
motion for conditional certification is usually filed before any significant discovery has taken 
place. Id. The p laintiffs' burden at this first stage is typically not onerous. Id . Conditional 
certification at the notice stage requires “nothing more than substantial allegations that the putative 
class members were together the victims of a single decision, policy or plan.” Id.; see also Kautsch 
v. Premier Commc'ns, 504 F.Supp. 2d 685, 689 (W.D. Mo. 2007); Ford, 2010 WL 1433455, at *3 
(“A class is similarly situated at this stage if plaintiffs make a modest factual showing, based upon 
the pleadings and affidavits, that the proposed class members were victims of a single decision, 
policy, or plan.”); Dernovish v. AT&T Operations, Inc., No. 09-0015CVWODS, 2010 WL 143692, 
at *1 (W.D. Mo. Jan. 12, 2010) (“There is no need to show that the would-be members of the class 
are actually similarly situated or that they are identical, but the plaintiff must present some 
evidence to demonstrate the class members are similar in important respects and are subjected to 
similar policies or circumstances.”).  A plaintiff may meet this burden by “detailed allegations 
supported by affidavits.”  Kautsch, 504 F.Supp. 2d at 689 (citation omitted). The Court does not 
reach the merits of the p laintiffs’ claims at this early stage of litigation.  Fast v. Applebee's Int'l, 
Inc., 243 F.R.D. 360, 363 (W.D. Mo. 2007) .  If the Court conditionally certifies the class, the 
potential class members are given notice and the opportunity to opt -in.  Dernovish, 2010 WL 
143692, at *1. 
The second step is the “merits stage” and occurs when the defendant moves to decertify 
the class. Ezell v. Acosta, Inc., No. 4:16CV870 RLW, 2018 WL 3763834, at *3 (E.D. Mo. Aug. 8, 
2018); Beasley, 270 F.R.D. at 444; Dernovish , at *1 (W.D. Mo. Jan. 12, 2010) . Typically this 
occurs after the close of discovery, when the Court has more information and is able to make a 
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more informed decision. Dernovish , 2010 WL 143692, at *1. “ [The] Court does not need to 
determine whether class members are actually  similarly situated until the ‘ merits stage’ of the 
litigation, when defendants typically move to decertify the class .”  Bilskey v. Bluff City Ice, Inc. , 
No. 1:13-CV-62 SNLJ, 2014 WL 320568, at *2 (E.D. Mo. Jan. 29, 2014) .  “Applying a stricter 
standard, the court at the second step makes a factual determination on the similarly situated 
question.” Wilson v. PNK (River City), LLC , No. 4:15CV00380 AGF, 2015 WL 5098716, at *2 
(E.D. Mo. Aug. 31, 2015); Garner v. Regis Corp., No. 03-5037-CV-SW-SWH, 2004 WL 5455905, 
at *2 (W.D. Mo. Aug. 5, 2004)(citation omitted).   
C. Similarly Situated 
Although the term “similarly situated” is not defined by the FLSA, it “typically requires a 
showing that an employer's commonly applied decision, policy, or plan similarly affects the 
potential class members, and inflicts a common injury on plaintiffs and the putative class.” Keef v. 
M.A. Mortenson Co., No. 07–cv –3915 (JMR/FLN), 2008 WL 3166302, at *2 (D. Minn. Aug. 4, 
2008) ( citation and quotation omitted); Hussein v. Cap. Bldg. Servs. Grp., Inc., 152 F. Supp. 3d 
1182, 1191 (D. Minn. 2015). Determining whether Plaintiff ’s showing meets this standard “lies 
within the Court's sound discretion.” Id.  According to Plaintiff, all 14 opt -in P laintiffs who 
submitted declarations in support of conditional certification “suffered the same malady of 
working through meal breaks but not having their automatically deducted pay restored, 
demonstrating a companywide scheme and the existence of a collective whose members are 
similarly situated.”  (ECF No. 53 at 3).  Plaintiff argues that a “de facto and systemic policy” 
existed to “deprive[] Plaintiffs of wages and require[] them to plead for pay to be restored using 
unreliable processes with no audit trail.”  ( Id.)   
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In sum, Plaintiff contends “ all members of the collective were employed by Defendants, 
were subjected to the identical automatic meal break deduction policy in which at least 30 minutes’ 
pay was deducted per day regardless of whether they took a meal break or not, and performed 
uncompensated work during the automatically deducted meal break due to the demanding and 
unpredictable nature of providing patient healthcare.”  (ECF No. 53 at 16).  That is, “[t]he 
unifying factors that lead to order are employees holding various positions and working in various 
locations are all subject to the soulless automatic chopping away of their time for a meal break that 
the company concedes was challenging to schedule due to the chaotic nature of the work.”  (ECF 
No. 53 at 28); see also ECF No. 62 at 5 (“This is an opportunity to address an injustice plaguing 
health care working in which Mercy refuses to listen to the pleas of the twenty-seven (27) workers 
and counting who endure soulless machinery consistently swiping a half -hour of pay each day 
from them, and labyrinthine, inconsistent restoration processes that will leave them without the 
ability to redress if they don’t receive Notice and the ability to be heard.”).    
“District courts often conditionally certify FLSA classes when presented with allegations 
that supervisors are in practice discouraging employees from correcting their time records or 
wrongfully refusing to correct employees ’ time records.” Miller v. MV Transportation, Inc., 331 
F.R.D. 104, 112 (W.D. Tex. 2019)  (citing Hamm v. S. Ohio Med. Ctr., 275 F. Supp. 3d 863, 877 
(S.D. Ohio 2017) ( conditionally certifying a class where the employer's “enforcement of its 
automatic meal deduction policy has violated the FLSA  by causing Plaintiff and other potential 
class members to work hours for which they were not compensated”); Myers v. Marietta Mem'l 
Hosp., 201 F. Supp. 3d 884, 895 (S.D. Ohio 2016) (conditionally certifying a class where plaintiffs 
alleged “that they and other workers were often unable to take meal breaks and were discouraged 
from canceling the automatic deduction when they could not take a break”); Lindberg v. UHS of 
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Lakeside, LLC, 761 F. Supp. 2d 752, 761 (W.D. Tenn. 2011) (conditionally certifying a class where 
plaintiffs alleged that management knew they were working through meal breaks but “routinely 
discouraged employees from utilizing the time adjustment forms”). The Court finds that plaintiff 
has alleged that the meal break policy similarly affects the potential collective members, making 
them similarly situated for purposes of conditional collective certification.   
D. Uniform Policy 
As stated, the FLSA allows named plaintiffs to sue “for and in behalf of ... themselves and 
other employees similarly situ ated.” 29 U.S.C. § 216(b).  “ Plaintiffs may be similarly situated 
when they suffer from a single, FLSA-violating policy, and when proof of that policy or of conduct 
in conformity with that policy proves a violation as to all the plaintiffs.”  Bouaphakeo v. Tyson 
Foods, Inc., 765 F.3d 791, 796 (8th Cir. 2014)(internal citation omitted). “ A court may consider 
‘(1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses 
available to defendant which appear t o be individual to each plaintiff; [and] (3) fairness and 
procedural considerations.’” Bouaphakeo, 765 F.3d at 796 (citing Thiessen v. Gen. Elec. Capital 
Corp., 267 F.3d 1095, 1103 (10th Cir. 2001)).  “ While Plaintiffs’ burden is not onerous, Plaintiffs 
must assert substantial allegations that the putative class members were the victims of a single 
decision, policy or plan.” Andrews v. Appletree Answering Serv., No. 4:11 CV 2227 RWS, 2012 
WL 2339322, at *3 (E.D. Mo. June 19, 2012). 
Plaintiff contends that she has provided “substantial evidence beyond what is required at 
this stage that the workers of Mercy were all victims of Defendants’ time chopping scheme.”  
(ECF No. 53 at 28).   Plaintiff later temper s her statement, claiming that “[t]he violation is not 
that the workers were never able to take a meal break —it’s that meal break time was deducted 
regardless of whether workers actually took the break, and pay was commonly not restored for 
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breaks that weren’t taken.”  (ECF No. 62 at 2) ; see also ECF No. 62-5 (“All deponents testified 
to Mercy’s de facto policy in which they were frequently unable to take bona fide meal breaks but 
had work time automatically deducted.”).   
Plaintiff provided testimony indicating that, “[i]n contrast to the written policy, hourly-
paid employees subject to the automatic meal break deduction are drowning in a work culture 
where they rarely can take a 30 -minute break.”  (ECF  No. 53 at 9).  Plaintiff further argue s that 
her automatically-deducted pay was not often or regularly restored, arguing that Defendants relied 
on “soulless automation to chop away workers’ time and hiding behind the bureaucracy of 
labyrinthine mechanisms to stifle the restoration of worked time.”  (ECF No. 53 at 9).  Plaintiff 
provided statements from various named P laintiffs stating that they had not been paid for 
mandatory meal breaks.  Plaintiff Watson claimed she was unaware as to how to cancel her meal 
break deduction, even after she complained to her manager .  (ECF No. 53 at 10).  Plaintiff 
McKinzie claimed she was aware of a function to unilaterally cancel the automatic deduction, but 
she was instructed by her supervisors not to use it.  (ECF No. 53 at 10).  Plaintiff Rosikhina 
claims she knew how to cancel the automatic deduction and how to submit a meal break exception 
form, but faced arbitrary and unwritten rules that frequently prevented her from receiving pay for 
meal breaks she did not take.  (ECF No. 53 at 10- 11).  For example, she was not allowed to use 
the deduction cancellation during her regular shifts, only during her on call weekends.  ( Id.)  
Likewise, Rosikhina claims that workers in her department were only allowed to claim payment 
for their unused meal break if “no one ‘offered’ them a meal break.”  (Id.)  Plaintiff Peck claims 
that her nurse manager Chambless instructed that there would be “repercussions” if Peck utilized 
the cancel meal break deduction function on the time clock to restore her meal break time.  (ECF 
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No. 53 at 11).1  Likewise assistant nurse manager Carol Beecher sent an email discouraging Peck 
from cancelling her automatic meal deduction, which should only be used on “rare occasions.”  
(ECF No. 13 at 12). Beecher wrote that it was Mercy’s goal for everyone to be able to leave their 
desk for a 20- 30 minute meal break.  ( Id.)2  In sum, Plaintiffs allege that their supervisors had 
knowledge that the regular 30- minute meal breaks were not being taken, despite the automatic 
deduction.  (ECF No. 53 at 12-14). 3 
In response, Defendants note that Plaintiff requests conditional certification of a collective 
that includes 30,000 non- exempt Mercy employees, with 1,663 different job titles, and work in 
more than 2,300 different departments.  (ECF No. 47 at 1; ECF No. 47- 1, ¶ 4).  Defendants 
provide evidence that there was not a uniform policy to deprive employees of pay due to 
mandatory, unused meal breaks.  Indeed, eight of the fourteen declarations provided by Plaintiffs 
state that they had meal breaks restored at times.  See ECF No. 37- 5, Peck Decl., ¶ 19 (“There 
were times in which I had my shorted pay restored”); ECF No. 37 -8, Papin Decl., ¶ 19 (same); 
ECF No. 37-12, Louie Decl., ¶ 19 (same); ECF No. 37- 13, Arman Decl., ¶ 19 (same); ECF No. 
 
1 Plaintiff Peck testified that she worked as a Unit Registration Representative on the night shift in 
the Labor and Delivery department at Mercy’s hospital in Oklahoma City, Oklahoma.  (ECF No. 
47 at 4). 
2 From this email, Plaintiff extrapolates that “[w]ritten supervisory guidance countermanding a 
30-minute lunch with supplanting instructions that an acceptable meal break can be anywhere 
from 20-30 minutes is chaos.”  (ECF No. 53 at 27).   
3 “[S]igned declarations or affidavits provide appropriate support for motions to conditionally 
certify a class.” Stouder v. Turblex, Inc., No. 10-3069-CV-S-DW, 2010 WL 11619552, at *2 
(W.D. Mo. Aug. 31, 2010); Robertson v. LTS Mgmt. Servs. LLC, 642 F.Supp.2d 922, 926 (W.D. 
Mo. 2008) (rejecting the defendant's argument that five affidavits did not prove the plaintiffs 
were similarly situated because they were all “conclusory and contain[ed] the same 
information”); Frazier v. PJ Iowa, L.C., 337 F. Supp. 3d 848, 865 (S.D. Iowa 2018). 
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37-14, Conley Decl., ¶ 23 (same); ECF No. 37-16, Rosikhina Decl., ¶ 19 (same); ECF No. 37-17, 
Burns Decl., ¶ 19 (same); and ECF No. 37-18, Cornish Decl., ¶ 19 (same).  
As noted by another district court, “Courts have granted conditional class certification to 
similar classes of hospital employees who work in direct patient care, including registered nurses, 
licensed practical nurses, and nurses' aides.” Myers, 201 F. Supp. 3d at 895–96 (citing Bergman v. 
Kindred Healthcare, Inc., 949 F.Supp.2d 852, 860 (N.D. Ill. 2013) (granting conditional 
certification to “nurses and hospital employees who are engaged in the direct care of patients” and 
noting that “[t]he nature of their interrupted meal breaks was affected by the demands of patient 
care”); Colozzi v. St. Joseph's Hosp. Health Ctr., 595 F.Supp.2d 200, 211 (N.D.N.Y. 2009) 
(granting conditional certification of a class  of a hospital's hourly employees “including but not 
limited to registered nurses, licensed practical nurses, nurse practitioners, and certified  nurses' 
assistants, with direct patient care responsibilities who have been subject to automatic meal break 
deductions”); Fengler v. Crouse Health Foundation, Inc., 595 F.Supp.2d 189, 191 (N.D. N.Y. 
2009) (granting certification to a collective action of “current and former hourly employees with 
direct patient care responsibilities working at Crouse Hospital”).   
This Court “agrees with the findings of many other courts that a class of direct patient care 
employees subject to automatic meal break  deductions is adequately defined for purposes of 
conditional certification. Because the key inquiry here is whether the plaintiffs suffer from a policy 
that violates the FLSA—the automatic meal break  deduction—and whether the employer's policy 
is a violation as to all plaintiffs, Plaintiff has met her burden by showing that the meal break policy 
applies to this group of direct patient care employees and alleging that they and other workers were 
often unable to take meal breaks  and were discouraged from canceling the automatic deduction 
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when they could not take a break.” Myers, 201 F. Supp. 3d at 895 (citing O'Brien v. Ed Donnelly 
Enterprises, Inc., 575 F.3d 567, 585 (6th Cir. 2009) (holding that plaintiffs were similarly situated 
because they “articulated two common means by which they were allegedly cheated: forcing 
employees to work off the clock and improperly editing time -sheets”); Murton v. Measurecomp, 
LLC, No. 1:07– CV–3127, 2008 WL 5725631, at *4 (N.D. Ohio June 9, 2008) (“[A] court may 
deny a plaintiff's right to proceed collectively only if the action arises from circumstances purely 
personal to the plaintiff, and not from any generally applicable rule, policy, or practice” (quotation 
marks and citation omitted).); Bernal v. Vankar Enters., Inc., No. SA–07–CA–695–XR, 2008 WL 
791963, at *4 (W.D. Tex. Mar. 24, 2008) (“Plaintiff's allegation that participation in the invalid 
tip pool was mandatory for all Defendants' bartenders is sufficient to meet the lenient standard for 
conditional certification.”)).  The Court holds that Plaintiff has provided sufficient evidence that 
there was a company-wide environment wherein employees routinely could not schedule or take 
uninterrupted meal breaks, yet had 30 minutes of pay deducted. See Chin v. Tile Shop, LLC, 57 F. 
Supp. 3d 1075, 1082 (D. Minn. 2014)  (citing Frank v. Gold'n Plump Poultry, Inc.,  No. 04–cv–
1018 (JNE/RLE), 2005 WL 2240336, at *2 (D.  Minn. Sept. 14, 2005)  (“the Court must only 
determine whether Plaintiff has come forward with evidence establishing a colorable basis that the 
putative class members are victims of a single decision, policy, or plan”); Myers, 201 F. Supp. 3d 
at 891 ( “And a balancing of Plaintiffs' and Defendants' competing affidavits would require 
credibility and factual determinations and is thus improper at this time.”). Given the low standard 
at this stage, the Court finds that Plaintiff has sufficiently alleged and supported her claim that 
Mercy employed an unlawful policy that affected the proposed collective. 
 
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E. Vague and Unsupported Allegations 
 Defendants argue that Plaintiff cannot meet her burden of proof, particularly regarding 
knowledge of a company-wide policy.  Defendants claim that named Plaintiff Peck, and plaintiffs 
Rosikhina and McKinzie, all acknowledged they did not have information regarding whether other 
employees were properly paid. (ECF No. 47 at 27); see also  Evans v. Cont. Callers, Inc., No. 
4:10CV2358 FRB, 2012 WL 234653, at *5 (E.D. Mo. Jan. 25, 2012)  (“plaintiff's bare assertion 
that CCI should have known that its employees were not taking lunch breaks, with nothing more, 
is insufficient to constitute evidence that CCI engaged in a systematic policy of violating the FLSA 
with regard to its mealtime deduction”). 
The Court, however, finds that Plaintiff has made a sufficient demonstration that she and 
other putative Plaintiffs were aware of others improperly paid. See Myers, 201 F. Supp. 3d at 893 
(“Nevertheless, even if the Court were to find that it was not appropriate to consider inadmissible 
evidence in deciding a motion for conditional certification, the Court finds that many of the 
relevant statements in Plaintiffs' affidavits are based on their personal knowledge and are thus 
admissible under Federal Rule of Civil Procedure.”).  Indeed, “[e]ach Plaintiff who was deposed 
and all fourteen (14) declarants stated that they complained to management about the deduction 
and inability to take a meal break or to restore the time. Plaintiffs were observed by charge nurses 
and other present supervisory leaders whose job duties included ensuring that employees received 
meal breaks.” (ECF No. 53 at 12).  The Court finds “ it is reasonable to infer that in the course of 
their daily work Plaintiffs would have personal knowledge about whether other employees clocked 
in and clocked out for lunch breaks or were regularly unable to take a lunch break.” Myers, 201 F. 
Supp. 3d at 894. Plaintiff provided testimony that P laintiffs Watson, Peck, McKinzie, and 
Rosikhina all complained to their supervisors about their inability to take meal breaks.  (ECF No. 
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53 at 13- 14).  T hey claim that their supervisors , aware of the employees’ unpaid meal breaks , 
indicated that nothing could be done to rectify the situation.  (Id.) Again, the Court finds that “this 
is a practice of employees being on duty during their breaks ” is one “of which individual 
employees could very well be aware through personal knowledge.” Myers, 201 F. Supp. 3d at 895. 
F. Manageability 
 Defendants argue that th e Court should deny conditional class certification because the 
proposed class would be unmanageable.  Defendants claim that “the Court will be forced to 
conduct thousands of fact -intensive mini-trials concerning the unique facts of each individual’s 
claim, including whether they regularly took meal breaks, whether they worked through their meal 
break, the amount of time they worked during their meal break, the dates on which they worked 
through their meal break, whether they entered a meal break cancellation, and whether they advised 
their supervisor that they worked through their meal break or their supervisor otherwise witnessed 
it.” (ECF No. 47, 29 -30).  Defendants maintain that these “case-by- case” determinations make 
this action unsuitable for collective action.  (ECF No. 47 at 30).   
 While recognizing Defendants’ arguments, the Court finds no reason to deviate from its 
usual practice of addressing manageability at the second stage of the conditional certification 
process.  See Helmert v. Butterball, LLC, No. 4:08CV00342 JLH, 2009 WL 5066759, at *6 (E.D. 
Ark. Dec. 15, 2009) (citing Bouaphakeo v. Tyson Foods, Inc., 564 F.Supp. 2d 870, 892-93 (N.D. 
Iowa 2008); Kautsch, 2008 WL 294271, at *2; Smith v. Heartland Auto. Servs., Inc., 404 
F.Supp.2d 1144, 1150 (D. Minn. 2005) (“Courts consider three factors at this second stage: (1) the 
employment and factual settings of the plaintiffs; (2) the various defenses available to the 
defendants; and (3) considerations of fairness, procedure, and manageability.”).  
 
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G. Notice 
 Without specificity, Defendants object to the content, form and method of distribution of 
the Notice and ask the Court to order the parties to meet and confer prior to approving the Notice.  
(ECF No. 47-30).  Plaintiff does not seem to respond to Defendant s’ nebulous Notice objections.  
(ECF No. 53, passim).  Given the protracted nature of this litigation, the Court asks the parties to 
resolve their disputes regarding the Notice to the putative collective.  The parties should submit 
their proposed Notice documents no later than January 13, 2023. 
Accordingly, 
IT IS HEREBY ORDERED  that Plaintiff’s Motion for Conditional Collective 
Certification and Court-Supervised Notice to Potential Opt -In Plaintiffs Pursuant to 29 U.S.C. § 
216(b) (ECF No. 37) is GRANTED, in part.  The Court conditionally certifies the following 
FLSA collective class: “All hourly-paid employees of the Defendants who were or are subject to 
the automatic meal break deduction policies at any time on or after three (3) years prior to the date 
on which the Court approves the collective certification.”   Defendants shall identify all putative 
members of the Collective by providing their names, last known addresses, dates and locations of 
employment, job titles, phone numbers, and e -mail addr esses, in an electronic and importable 
format, such as an unrestricted Excel spreadsheet, within fourteen (14) calendar days of the entry 
of this Order.  The Court postpones addressing the court-supervised Notice until the parties have 
properly brought this issue before the Court.   
IT IS FURTHER ORDERED that the parties shall meet and confer regarding their issues 
related to the proposed Notice in this case. The parties shall provide a status report to the Court no 
later than January 13, 2023, identifying when the parties met to discuss and whether they have 
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reached an agreement on these issues.  In the event that the parties cannot reach an agreement, the 
parties shall each submit briefs no later than January 13, 2023, outlining their positions. 
 
Dated this 27th day of December, 2022. 
 
  
RONNIE L. WHITE 
UNITED STATES DISTRICT JUDGE 
Case: 4:21-cv-00834-AGF     Doc. #:  90     Filed: 12/27/22     Page: 15 of 15 PageID #:
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