Total Security Management is a security firm that was based in Canada with 1 U.S. office that opened in 2005. Since then TSM was sold to Garda World and the U.S. office is ran out of Oakbrook Terrace, Illinois. Under the leadership of Craig Cambell TSM was one of the employee friendly companies to work for. But once the company sold the President then turned to Tony Guy Arcaro. TSM brings in about 10 to 20 million dollars a year and employs 100 to 260.
TSM under the direction of Mr. Arcaro grew into 3 states and will be most likely changing the name of the company because that was a sale agreement according to Garda World.
Since Mr. Arcaro has been in charge TSM was sued in the state of Wisconsin by a employee Raychelle Freeman.
WILLIAM M. CONLEY, District Judge.
Plaintiffs Raychelle Freeman and Bobby Dean, Sr., bring this suit on behalf of themselves and a putative class of employees of Total Security Management, Inc., alleging that they were required to do pre-shift work and attend work-related training without compensation, both in violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., and applicable state wage and hour laws. Plaintiffs seek monetary damages in the form of unpaid wages and, where applicable, overtime pay. Plaintiffs now move for conditional certification of (1) a nationwide class of employees who attended mandatory or job-related trainings without compensation, and (2) a Wisconsin-only class of employees allegedly required to do unpaid work before their regular shift. Plaintiffs also move to strike some of defendants' evidence submitted in opposition to the class certification motion.
For the reasons set forth below, the court will partially grant and partially modify plaintiffs' motion for class certification, conditionally certifying (1) a nationwide class of employees who were not compensated for attending training directly related to their jobs;
(2) a Wisconsin class of employees who were not compensated for attending mandatory trainings on the use of work equipment; and (3) a Wisconsin class of employees who were not compensated for mandatory, pre-shift work. As a preliminary matter, the court will also deny plaintiffs' motion to strike.
Defendants contest plaintiffs' motion for conditional certification, arguing that there is no common employer policy or practice that connects the representative plaintiffs to members of the proposed class. In support, defendants filed declarations of various employees, each averring that he or she has not been subject to the alleged policies. Plaintiffs seek to strike portions of two such declarations on evidentiary grounds, pointing out that affidavits submitted in support of a motion for conditional certification must comply with the Federal Rules of Evidence. See Berndt v. Cleary Building Corp, W.D. Wis. No. 11-cv-791-wmc (citing Sjoblom v. Charter Comm., LLC, No. 3:07-cv-451-bbc, 2007 WL 4560541, at *10 (W.D. Wis. Dec. 19, 2007)).
First, plaintiffs contest the bolded sentence in paragraph 7, sentence 3 in the declaration by Charles Freeman, set forth below:
7. Since starting with TSM, I have not taken any training for baton, OC spray, handcuffs, or firearms. My supervisors, Dan and Ryan, told me that I could take this training if I wanted to, but I told them no thanks and they said okay. The way I see it, I don't need training on these items because I don't plan to ever work at any of the bank branch locations where Protection officers may carry this equipment. Neither Dan nor Ryan, nor anyone else at TSM, told me that I would be disciplined or terminated if I didn't take this training, and I have not received any discipline for not taking this training.
Plaintiffs assert that the bolded statement is speculative and irrelevant, and thus inadmissible under Federal Rules of Evidence 602 and 401. The court disagrees. The testimony is not speculative in that Freeman is simply explaining why he chose to forego training that would not help him. This sort of opinion is within Freeman's competence, provides appropriate background, and is not prejudicial to plaintiffs. As for the relevance of this opinion, defendants' legal duty to compensate for training attendance may depend on whether the trainings were directly related to an employee's current job duties (as discussed in more detail in the following analysis). Mr. Freeman's testimony at least indirectly sheds light on this issue. Defendants' motion to strike this bolded sentence will be denied.
Second, plaintiffs contest the bolded phrase in the final sentence of paragraph 6 in the Second, plaintiffs contest the bolded phrase in the final sentence of paragraph 6 in the declaration of Santiago Zarate as set forth below:
6. TSM offers company-sponsored trainings to Protection officers. I have attended training on batons, OC spray, handcuffs, and firearms. I did not have to pay anything to attend these trainings. I have received certificates or cards for completing these trainings, and I believe that I could use these certificates or cards to work for other companies or organizations.
Plaintiffs contend that this bolded phrase statement is inadmissible under Federal Rule of Evidence 602 as speculation, because defendants have not laid a foundation as to the basis for Mr. Zarate's belief that he can use these certificates for other employment. However, no foundation is needed because Mr. Zarate is averring his belief, not reality. Because it is only his belief, the statement is admittedly of minimal relevance, and therefore will be accorded less weight, but the court will not strike it.
Defendant Total Security Management, Inc. ("TSM, Inc.") is a holding company that owns and directs state-level TSM entities in Wisconsin, Illinois, Indiana, Missouri and Arizona. Under this umbrella, defendants Total Security Management - Wisconsin, LLC (TSM - Wisconsin), Total Security Management - Illinois 1 (TSM - Illinois), and Total Security Management - Indiana (TSM - Indiana) are all limited liability companies in the business of private security. Each company contracts to provide security guards - "Protection Officers" - to banks and other businesses in their respective states. Defendant TSM - Illinois also operates as something of a headquarters for the other state-level branches, providing back-office support.
The named plaintiffs in this case are Raychelle Freeman, who worked for defendant TSM - Wisconsin as a Protection Officer, and Bobby Dean, Sr., who worked for defendant TSM - Illinois as a Protection Officer, Site Supervisor, and Field Supervisor in the Chicagoland area covering locations in Illinois and Indiana.
B. Mandatory and Job-Related Training
Raychelle Freeman avers that she was required (1) to carry handcuffs, pepper spray and a baton on the job, and (2) to know how to use these items to deal with intruders and to make arrests, if necessary. Freeman also avers that she was required to attend without compensation company-sponsored trainings for handcuff, pepper spray, and baton use. Bobby Dean, Sr., avers that he was required to carry handcuffs, a baton, pepper spray and a handgun on the job. He further avers that he was required to attend, but was not compensated for, "various training classes, including handcuffing, [pepper] spray, baton, and handgun use." On the basis of this testimony, both plaintiffs assert that they are entitled to compensation for time spent training in the use of work equipment because: (1) the trainings were not voluntary; and (2) the trainings are directly related to their jobs.
The named plaintiffs allege that other employees within their respective state-level TSM branches, as well as employees at all other TSM state branches, were similarly required to attend work-relevant and/or mandatory trainings without compensation. Pursuant to 29 U.S.C. § 216(b), plaintiffs therefore seek to represent the following plaintiff class:
All persons who have been or are employed by Total Security Management - Illinois 1, LLC, and/or Total Security Management, Inc. as a protection officer at any time during the past three years anywhere in the United States, and who were not compensated for time spent in attendance at company sponsored trainings.
(Third Am. Compl., dkt. #85-1, ¶13.)
Defendants admit to not compensating plaintiffs, or any other protection officers, who attend such trainings. However, they deny ever requiring employees to take such training. They also deny that this type of weapons/restraints training is directly related to any Protection Officer's job.
C. Pre-Shift Work
Plaintiff Raychelle Freeman also avers that she was required by TSM - Wisconsin's Director of Operations, Ryan Weber, to report to work 15 minutes before the beginning of her daily paid shift, performed work during this time, and was not compensated for this extra work. She alleges that all other protection officers working in Wisconsin were subject to the same policy and seeks to represent the following plaintiffs class pursuant to 29 U.S.C. § 216(b):
All persons who have been or are employed by Total Security Management - Wisconsin, LLC, Total Security Management - Illinois 1, LLC, and/or Total Security Management, Inc. in Wisconsin as a protection officer at any time during the past three years, and who were required to perform work at the beginning of their shift without compensation and/or to attend uncompensated company sponsored trainings.
(Third Am. Compl., dkt. #85-1, ¶14.)
With respect to Freeman's allegations about unpaid pre-shift work, defendants deny that she or any other employees have been required to arrive at work before their official shift. They further assert that employees are always encouraged to report all time worked and are paid accordingly.
I. Legal Standard for Conditional Certification
A. Two-Step Framework
Section 216(b) of the FLSA authorizes plaintiffs to bring a "collective action" against an employer to recover unpaid compensation for themselves and on behalf of "other employees similarly situated." 29 U.S.C. § 216(b). Unlike a typical class action lawsuit under Federal Rule of Civil Procedure 23, where an unwilling plaintiff must "opt out" of the class, a collective action brought pursuant to Section 216(b) of the FLSA requires employees or former employees to "opt in" by filing a written consent to join the action. Woods v. N.Y. Life Ins. Co., 686 F.2d 578, 579-80 (7th Cir. 1982). In light of this special "opt-in" requirement, most courts (including this one) apply a two-step approach to certifying collective actions. Austin v. CUNA Mut. Ins. Soc., 232 F.R.D. 601, 605 (W.D. Wis. 2006).
At the first "conditional" step of certification, a plaintiff need only make "a modest factual showing" that she and potential class members are similarly situated. Id. Conditional certification is typically made only on the basis of the plaintiff's allegations and supporting sworn statements. Courts need not consider rebuttal evidence submitted by the defendant. See id. at 606 ("[t]he proper focus at this stage is on plaintiff's submissions"); Barrus v. Dick's Sporting Goods, Inc., 465 F.Supp.2d 224 (W.D.N.Y. 2006) (rejecting contradictory affidavits from defendants at notice stage). Courts may consider such defendant-submitted evidence, but should give it dispositive weight only where the plaintiff's showing is already very weak. E.g., West v. Border Foods, Inc., Civil No. 05-2525 (DWF/RLE), 2006 WL 1892527, 2006 U.S. Dist. LEXIS 46506, at *7 (D. Minn. July 10, 2006) ("[N]either the remedial purposes of the FLSA, nor the interests of judicial economy, would be advanced if we were to overlook facts [supplied by a defendant] which generally suggest that a collective action is improper."). When courts choose to consider contradictory evidence at the conditional certification stage, all disputed issues of fact are decided in favor of the plaintiff. Severtson v. Phillips Beverage Co., 141 F.R.D. 276, 278-79 (D. Minn. 1992).
Unlike a typical plaintiff who files for conditional certification at the outset in advance of any discovery, defendants suggest that an "intermediate standard" of scrutiny should apply here because plaintiffs have had the opportunity to conduct some discovery. An intermediate standard may be appropriate when a court has expressly allowed "discovery on the issue of whether the plaintiffs are similarly situated" and the plaintiffs have been given access to a "list of other... potential members of the proposed class." Bunyan v. Spectrum Brands, Inc., No. 07-CV-0089-MJR, 2008 WL 2959932, 2008 U.S. Dist. LEXIS 59278, at *4 (S.D. Ill. July 31, 2008). But that is not the case here. Plaintiffs have had limited discovery, deposing two of defendants' corporate representatives and some of defendants' employee witnesses. Notably, they have not been permitted discovery into the matters that are most useful to establishing conditional certification - access to a list of fellow employees at other locations. Therefore, an intermediate standard is inappropriate at this stage. Accord, Renfro v. Spartan Comp. Servs., Inc., 243 F.R.D. 431, 434 n. 4 (D. Kan. 2007) ("[T]he Court is not inclined to apply the heightened second stage certification analysis on the minimal amount of discovery before it.").
If an adequate showing is made at this first step, the court conditionally certifies a class and authorizes notice to potential class members. Kelly v. Bluegreen Corp., 256 F.R.D. 626, 629 (W.D. Wis. 2009). At the close of discovery, and upon a motion for decertification from the defendant, the court conducts the more rigorous second step of the analysis, weighing the evidence submitted by both sides and determining whether the plaintiffs are in fact similarly-situated to those who have opted in. Id.
TSM even after this still violates labor laws. We received documents from the Illinois Department of Labor that supervisors are working anywhere between 70 to 90 hours a week. The company stated that their staff doesn't work no more then 12 to 16 hours a day. Yet when we saw the IDOL report officers are working 6 sometime 7 days straight violating the 1 day rest law and violating their own company policy.
We noticed a handful of employees including upper management worked for Intercon.
Intercon Security was disciplined on license # 127-000852 we are looking in to why.
The company has mid management drive 8 to 16 hours but if they have a post open and can not be filled then these managers work it. Now these officers and mid management are armed driving either home or back to the office falling asleep and using poor judgment behind the wheel. One former employee stated he was promised things if he got one site going and the company never fulfilled the agreement. Another employee stated that the company doesn't inform officers about time off requests nor allows anyone any time to sleep.
TSM also tells employees it is volunteer to do the training for non lethal weapons but yet tells the employees they will be pulled from their site if they don't complete the training. We asked Illinois Department of Professional Financial Regulations and they informed us that as long as you have a Permanent Employee Registration Card or P.E.R.C. that you can legally carry on your person a baton, OC, and cuffs without any repercussions. They also stated that the person using them can be sued though if not used properly.
We shall keep you updated