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Danford v. Lowe's Home Centers, LLC

United States District Court, W.D. North Carolina, Statesville Division

October 2, 2019



          Kenneth D. Bell, United States District Judge.

         THIS 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”) stores nationwide.

         For the 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.

         I. BACKGROUND

         Defendants 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.

         For 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).

         Plaintiffs 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.

         Plaintiffs 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 17).


         Plaintiffs 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).

         After 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).

         Lowe's 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).

         Soon 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).

         Within 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).

         At oral 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.

         On 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.

         II. ...

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