United States District Court, S.D. Ohio, Western Division
SANDRA FUNK, on behalf of herself and others similarly situated, Plaintiff,
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
H. RICE UNITED STATES DISTRICT JUDGE
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.
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.
Background and Procedural History
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.
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.
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.
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.
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.
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)
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.
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.
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
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 ...