United States District Court, N.D. Georgia, Atlanta Division
KEGAN REICHERT, on behalf of himself and those similarly situated, Plaintiff,
HOOVER FOODS, INC., a Georgia Corporation, Defendant.
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff Kegan Reichert's
(“Reichert”) Motion for Conditional Certification
a putative collective action brought by Plaintiff against his
former employer, Hoover Foods, Inc. (“Hoover” or
“Defendant”). On December 13, 2016, Reichert
filed his Complaint  “on behalf of himself and all
other similarly situated assistant managers who worked for
Defendant at their Wendy's locations throughout the
Southeastern United States.” (Compl. ¶ 1).
Reichert asserts claims for overtime compensation under the
Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§ 201 et seq., and seeks liquidated damages and
support his Motion for Conditional Certification, Plaintiff
submits his deposition testimony [29-6] and [30-1], the
deposition testimony of Hoover's Rule 30(b)(6)
representative, Glenn Varner (“Varner”) [29-5]
and [30-2], Defendants Interrogatory Responses [29-2], and
the declarations of two opt-in plaintiffs, Paulette Clay
(“Clay”) [29-7] and Colette Mazzuca
(“Mazzuca”) [29-8] (together, “Opt-in
Plaintiffs” or “Declarants”).
maintains that Defendant Hoover operates around 44
Wendy's restaurant franchises. ([30-2] Varner Depo. at
9). Plaintiff testified that Defendant employed him as an
assistant manager from July 8, 2015, through August 24, 2016.
([30-1] Reichert Depo at 38, 112, 114). Citing
Defendant's interrogatory response, Plaintiff asserts
that he is among approximately 270 other current and former
assistant managers employed by Defendant since January 1,
2014. ([29-2] at 7-15). Defendant classified Plaintiff, and
all other assistant managers, as exempt employees.
(Id. at 3, 18). Defendant paid Plaintiff a salaried
rate of $455 per week and did not pay overtime. (Id.
testified that he worked for Defendant at five different
locations as an assistant manager. ([30-1] at 25-28). Varner
testified that Defendant worked to operate each of its
locations in a uniform fashion. ([30-2] at 33). According to
Varner, the general duties of an assistant manager were the
same at all of Defendant's locations. (Id. at
32). Defendant maintains that all of Defendant's
assistant managers are paid a salary and bonuses.
(Id. at 22). Varner testified that a normal schedule
for assistant managers was five, 10-hour shifts each week.
Clay states that she worked at Defendant's Woodstock,
Georgia, location as an assistant manager for several years
before leaving in May 2016. ([29-7] ¶ 4). Clay asserts
that “[a]ssistant managers are required to work at
least fifty hours per week because we typically were
scheduled for five 10-hour shifts.” (Id.
¶ 6). Clay also states that Defendant did not have a
sick time policy and that she “understood the policy to
be that if you missed a day of work for illness you
wouldn't get paid.” (Id. ¶ 7). Clay
maintains that she “worked with many other assistant
managers and we all did the same job duties and were paid the
same way. We were all treated the same and the same policies
applied to all of us.” (Id. ¶ 8).
Mazzuca states that she worked at Defendant's Woodstock,
Georgia, location as a general manager from October 2012 to
February 2016. ([29-8] ¶ 4). Mazzuca asserts that
“[a]ll managers, including assistant managers, were
scheduled to work each week for at least fifty hours.”
(Id. ¶ 6). Mazzuca further states that
Defendant “did not have a sick time policy” and
that the “rule for all managers, including assistant
managers was if you did not work one day you were docked a
day's pay, regardless of why you were out.”
(Id. ¶ 7).
claims that Defendant willfully “misclassified”
assistant managers as exempt employees and failed to
compensate them for overtime. (Compl. ¶¶ 22-27).
Plaintiff asserts that Defendant's assistant managers are
not exempt employees because they “had no ability to
hire or fire employees, [and] were not involved in
interviewing or other aspects of firing/hiring.”
(Compl. ¶ 18). Plaintiff also claims that
Defendant's assistant managers are not exempt employees
because Defendant docked their pay for absences, including
for illness, and effectively did not pay assistant managers
on a salary basis. (Comp. ¶ 18).
asserts that its assistant managers are properly classified
as exempt employees because their role “consisted of
managing the restaurant . . . including supervising and
directing the work of multiple employees (known as
‘crew members').” ([29-2] at 4). Defendant
maintains that its assistant managers perform a number of
supervisory tasks, including crew member training, creation
of the work schedule for crew members, assigning each crew
member to their specific role in the restaurant on a daily
basis, evaluating and conducting performance reviews of crew
members, disciplining crew members, and interviewing
potential crew member candidates. ([29-2] at 5). Defendant
asserts that “it had a policy of compensating its
assistant managers, including Plaintiff, for sick time that
was supported by medical documentation, such as a
doctor's note” and that it “requested, but
did not require” assistant managers to make up
undocumented time missed. ([29-2] at 18). Nevertheless,
Varner testified that Defendant “went back [the] past
three years and paid anybody that had any time docked,
” including all assistant managers. ([30-2] at 80-83).
Varner further testified that, with respect to its sick time
policy and compensation for previously docked pay, Defendant
endeavors to “treat everybody the same. We don't
have different rules for general managers and assistant
managers. Everybody is the same.” (Id. at 88).
5, 2017, Plaintiff moved to conditionally certify a class of
“[a]ll assistant managers who worked at any of
Hoover's Wendy's locations from [three years prior to
Order granting Notice] to the present.” ([29-1] at 3).
Plaintiff also seeks an order requiring Defendant to produce
contact information of potential class members, and
authorizing Plaintiff's proposed Notice of Lawsuit
(“Notice”) [29-3]. Defendant opposes conditional
Legal Standard to Conditionally Certify a Collective
FLSA requires covered employers to pay non-exempt employees
who work more than forty hours in a week an overtime rate of
one and one-half times the employee's regular pay rate
for all hours worked that exceed forty. 29 U.S.C. §
207(a). Section 216(b) imposes liability on employers for
violations of Section 207 and authorizes employees to bring
lawsuits to recover that liability. Employees may sue
individually or they may bring a collective action on behalf
of themselves and other “similarly situated”
An action . . . may be maintained against any employer
(including a public agency) in any Federal or State court of
competent jurisdiction by any one or more employees for and
in behalf of himself or themselves and other employees
similarly situated. No employee shall be a party plaintiff to
any such action unless he gives his consent in writing to