United States District Court, W.D. North Carolina, Statesville Division
Kenneth D. Bell, United States District Judge.
MATTER is before the Court on Plaintiffs Daniel
Danford and Harry Houtman's (collectively,
“Plaintiffs”) Pre-Discovery Motion for
Conditional Collective Certification and Court-Authorized
Notice to Potential Opt-In Plaintiffs Pursuant to 29 U.S.C.
§ 216(b). (Doc. No. 20). Plaintiffs seek conditional
collective certification for “Hourly Managers”
(defined below) who have been uncompensated for time worked
at Defendant Lowe's Home Centers, LLC and Lowe's
Companies Inc.'s (together, “Lowe's”)
reasons stated herein, the Court GRANTS IN
PART and DENIES IN PART
Plaintiffs' motion for collective certification. The
Court grants conditional collective certification for the
putative class as described herein and authorizes notice by
U.S. Mail and e-mail as set forth below.
Lowe's Companies, Inc. and Lowe's Home Centers, LLC
operate a chain of home improvement stores across the
country. (Doc. No. 20-1, at 8; Doc. No. 17, at 6). Plaintiffs
worked as “Hourly Managers” for Lowe's.
Plaintiff Danford worked as an hourly Department Manager and
Service Manager at the Lowe's North Raleigh Store (Store
#0444) from 2011 until 2018. (Doc. No. 17-5). Plaintiff
Houtman worked as an Hourly Manager at four different
Lowe's stores across the country from 2006 until 2019,
including the North Raleigh Store (Store #0444). (Doc. No.
17-5). Both allege that during their employment with
Lowe's they routinely worked off-the-clock and were not
compensated for all time worked.
purposes of this action, the term “Hourly
Managers” refers to various manager positions at
Lowe's. The list includes, but is not limited to,
Back-end Department Supervisors, Department Managers,
Front-End Department Supervisors, Loss Prevention Managers,
Night-Ops Supervisors, Overnight Managers, Product Service
Department Supervisors, Service Managers, Installed Sales
Department Managers, Sales Floor Department Supervisors, and
Support Managers. (Doc. No. 47-5, at 2; see also
Doc. No. 33, at 19). Plaintiffs assert that all the positions
have the same basic job duties, which includes occasionally
opening and closing the store, supervising employees, and
managing the store on a day to day basis. (Doc. No. 33, at
19; Doc. No. 20-1, at 9). Hourly Managers typically work up
to 40 or more hours per week. (Doc. No. 20-1, at 9).
contend that an Hourly Manager's responsibilities have
often led to unpaid hours and overtime. In large part they
blame Lowe's nationwide time-keeping system
“Kronos.” (Doc. No. 20-1, at 6-7). The Kronos
system only allows employees to clock in and out when they
are physically inside the store. (Doc. No. 20-1, at 12).
Thus, job responsibilities that are performed when the
employee is physically outside of the store cannot be logged.
(Doc. No. 20-1, at 13). While Hourly Managers can override
and retroactively adjust other hourly employees' work
hours in the Kronos system, they cannot retroactively adjust
their own work hours. Id.
allege two main categories of uncompensated work. (Doc. No.
20-1, at 13-18). The first category is opening and closing
the store while unable to contemporaneously log their time.
If an Hourly Manager is tasked with opening the store, he or
she must do a perimeter check, unlock the main entrance, turn
off the alarm, let other employees in, and turn on the
computer before being able to clock into Kronos. (Doc. No.
20-1, at 13-14). The perimeter check requires the manager to
drive his or her vehicle around the perimeter of the store to
check for anything out of the ordinary. Id.
Similarly, when closing the store, an Hourly Manager must
clock out of Kronos before arming the alarm system and
locking the door. (Doc. No. 20-1, at 16). The second category
of alleged uncompensated work is off the clock electronic
communications. (Doc. No. 20-1, at 15). Plaintiffs claim that
all Hourly Managers are required to download a messaging
application, read, and respond to work-related messages while
on lunch breaks and when not at work. Id. According
to the Plaintiffs, these categories of uncompensated work are
not isolated to any particular store or region, but are
occurring in Lowe's stores nationwide. (Doc. No. 20-1, at
filed a Complaint against Lowe's on April 11, 2019 (Doc.
No. 1) and an Amended Complaint on June 12, 2019. (Doc. No.
17). Plaintiffs allege in their Amended Complaint that
Defendants willfully violated the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq.,
by failing to compensate Hourly Managers for all hours
worked. (Doc. No. 17). Plaintiffs also claim Lowe's
violated the California Labor Code and IWC Wage Orders, the
North Carolina Wage and Hour Act, and assert claims for
breach of contract and unjust enrichment. All of these claims
are asserted as class actions. (Doc. No. 17).
filing their Amended Complaint, Plaintiffs filed this motion
for Conditional Collective Certification and Court-Authorized
Notice to Potential Opt-in Plaintiffs Pursuant to 29 U.S.C.
§ 216(b). (Doc. No. 20). Prior to responding to
Plaintiffs' complaint and motion for conditional class
certification, Lowe's filed a Motion for Expedited
Discovery and to Stay Briefing on Plaintiffs' conditional
collective certification motion. (Doc. No. 21 & 22).
then filed a Partial Motion to Dismiss Plaintiffs' First
Amended Collective and Class Action Complaint. (Doc. No. 27).
In this motion, Lowe's sought the dismissal of the counts
arising under California law. (Doc. No. 21 at 1). They argued
that Houtman was the only named plaintiff with standing to
assert such claims and that he is subject to arbitration.
Id. Lowe's also filed a motion to compel
arbitration of Henry Houtman's claims and to dismiss, or
in the alternative, stay the proceedings. (Doc. No. 29).
after Lowe's motion to dismiss, both parties filed a
Joint Motion for Stipulation of Dismissal that dismissed
Harry Houtman as a Plaintiff as well as all claims arising
under California law. (Doc. No. 38). This Court granted the
motion on August 2, 2019 and Henry Houtman was dismissed as a
plaintiff. (Doc. No. 40).
two weeks of the hearing on Plaintiffs' conditional
collective certification, Defendants filed two supplemental
memoranda. The first was a corrective supplemental
memorandum. (Doc. No. 43). The second, filed just two day
before oral arguments, included six declarations by
Lowe's employees purporting to counter the factual
allegations in Plaintiffs' filings. (Doc. No. 44).
arguments on September 19, 2019, the Court struck
Defendants' second supplemental memorandum (Doc. No. 44)
as untimely and barred by Local Rule 7.1. The Court also
denied Defendants' motion to expedite discovery. The
Court took the motion seeking conditional collective
certification under advisement, but ordered both parties to
meet and discuss by September 30, 2019 how to define a
putative class in the event the Court decides to order
conditional certification. The Court informed the parties
that if they failed to agree upon a putative class, the Court
would define the class as it deems appropriate.
September 30, 2019 each party submitted a separate proposed
notice to the Court and expressed they were unable to agree
on a putative class. After having carefully reviewed both
parties' proposed notices, the Court will define the
class and approve the notice as described in this Order.