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Funk v. Airstream, Inc.

United States District Court, S.D. Ohio, Western Division

May 16, 2018

SANDRA FUNK, on behalf of herself and others similarly situated, Plaintiff,
v.
AIRSTREAM, INC., et at., Defendants.

          DECISION AND ENTRY OVERRULING PLAINTIFF'S EMERGENCY MOTION FOR A PROTECTIVE ORDER, CEASE AND DESIST ORDER, AND THE IMMEDIATE GRANTING OF PLAINTIFF'S MOTION FOR ISSUANCE OF NOTICE, ADDITIONAL NOTICE, CORRECTIVE ACTIONS, PRELIMINARY INJUNCTION, AND SANCTIONS (DOC. #28); SUSTAINING PLAINTIFF'S PRE-DISCOVERY MOTION FOR CONDITIONAL CLASS CERTIFICATION AND COURT-SUPERVISED NOTICE TO POTENTIAL OPT-IN PLAINTIFFS PURSUANT TO 29 U.S.C. § 216(b) (DOC. #17); DEFENDANTS TO PROVIDE CONTACT INFORMATION FOR POTENTIAL OPT-IN PLAINTIFFS WITHIN 14 DAYS

          WALTER H. RICE UNITED STATES DISTRICT JUDGE

         Plaintiff Sandra Funk, on behalf of herself and others similarly situated, filed suit against her former employer, Airstream, Inc., and its parent company, Thor Industries, Inc., alleging violations of the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 201 et seq., the Ohio Minimum Fair Wage Standards Act, ("OMFWSA"), Ohio Rev. Code § § 4111.03 and 4111.08, and the Ohio Prompt Pay Act ("OPPA"), Ohio Rev. Code § 4113.15.

         This matter is currently before the Court on two pending motions: (1) Plaintiff's Pre-Discovery Motion for Conditional Class Certification and Court-Supervised Notice to Potential Opt-in Plaintiffs Pursuant to 29 U.S.C. § 216(b), Doc. #17; and (2) Plaintiff's Emergency Motion for a Protective Order, Cease and Desist Order, and the Immediate Granting of Plaintiff's Motion for Issuance of Notice, Additional Notice, Corrective Actions, Preliminary Injunction, and Sanctions, Doc. #28.

         I. Background and Procedural History

         Sandra Funk was a production worker at Airstream, Inc., from June of 2015 until June of 2017. As a non-exempt employee, compensated on an hourly basis, she was entitled to compensation equal to one and one-half times her regular rate of pay for each hour worked in excess of forty hours per week. 29 U.S.C. 1207(a)(1). The "regular rate" is deemed to include "all remuneration for employment, " including certain nondiscretionary bonuses. 29 U.S.C. § 207(e).

         Airstream paid its employees nondiscretionary attendance bonuses. It also paid nondiscretionary pool production bonuses for meeting production goals. Funk alleges that because Airstream failed to include these bonuses when calculating her regular rate of pay, the overtime rate that she was paid fell short of what was required. She filed suit on behalf of herself and others similarly situated, alleging violations of federal and state wage laws. Her First Amended Collective and Class Action Complaint, Doc. #16, alleges violations of the FLSA, the OMFWSA and the OPPA.[1]

         On March 6, 2018, Funk filed a Motion for Conditional Class Certification and Court-Supervised Notice to Potential Opt-in Plaintiffs Pursuant to 29 U.S.C. § 216(b). Doc. #17. She asked the Court to conditionally certify a collective FLSA action consisting of "[a]ll current and former hourly, non-exempt employees of Defendants, who received any additional form of remuneration during any workweek that they worked over 40 hours in any workweek beginning March 1, 2015 and continuing through the date of final disposition of this case." She also asked the Court to approve a Notice to be sent to potential opt-in plaintiffs, and to order Defendants to identify all potential opt-in plaintiffs.

         After Defendants filed their Response to Funk's Motion for Conditional Class Certification, Doc. #27, Plaintiff filed an Emergency Motion for a Protective Order, Cease and Desist Order, and the Immediate Granting of Plaintiff's Motion for Issuance of Notice, Additional Notice, Corrective Actions, Preliminary Injunction, and Sanctions, Doc. #28. This prompted several conference calls, held on April 20, 2018, April 26, 2018, and May 4, 2018.

         Both motions are now fully briefed. Although the Court issued oral rulings on these motions during the May 4, 2018, conference call, it sets forth its reasoning in greater detail below. The Court turns first to Plaintiff's Emergency Motion.

         II. Plaintiff's Emergency Motion for a Protective Order, Cease and Desist Order, and the Immediate Granting of Plaintiff's Motion for Issuance of Notice, Additional Notice, Corrective Actions, Preliminary Injunction and Sanctions (Doc. #28)

         After the Motion for Conditional Certification was filed, Airstream's Senior Vice President of Operations, Mark Wahl, sent two letters to putative class members stating that, in the process of implementing its new payroll system, Airstream had discovered an "inadvertent payroll error" in calculations of overtime pay. Employees were given money to remedy this error. Doc. #28-2, PageID##241, 243. Plaintiff maintains that Wahl's preemptive letters were coercive, deceptive and prejudicial in that they failed to mention the pending lawsuit and failed to inform the putative class members of their statutory rights.

         Sandra Funk and fellow former Airstream employee, Mark Satterly, further allege that Airstream told putative class members that the lawsuit was a scam and that they should not fall for it. Putative class members believed that if they joined the lawsuit, they would be retaliated against. Plaintiff is also concerned that putative class members will be confused about whether, in accepting the overtime payments, they have waived any right to participate in the lawsuit. She worries that they may believe that they have already been fully compensated for their damages when, in fact, they have not.

         Plaintiff requests that the Court: (1) issue a preliminary injunction enjoining Defendants from communicating with putative class members about the lawsuit until the Court rules on the class certification motion after the opt-in period and discovery have ended; (2) deem the payments already made to putative class members to be "gifts" instead of back wages; (3) sustain the Motion for Conditional Certification; (4) order Mark Wahl to send two additional letters to putative class members to correct any misunderstandings; (5) order that the Notice of Collective Action be sent two weeks after Wahl's first letter; and (6) order Defendants to conspicuously post the Notice of Collective Action in Airstream's facilities.

         Defendants deny that Mark Wahl's letters were deceptive, coercive or misleading. They maintain that they did nothing wrong in taking steps to correct the payroll error once it was discovered. The employees were not asked to waive any legal rights in exchange for the payments. Moreover, the letters say nothing about the lawsuit. With respect to Plaintiff's allegation that Airstream's conduct has a chilling effect on the putative class members' willingness to participate in the lawsuit, Defendants note that the Declarations submitted by Funk and Satterly are largely speculative and are based ...


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