Mariano's managers can continue with OT pay lawsuit vs supermarket chain

By John Breslin | May 13, 2019

Employees of a supermarket chain can move forward with their collective action over claims they were misclassified under fair labor laws and not paid owed overtime.

The four employees, managers at Chicago area Mariano's stores, asked a federal court to conditionally certify the collective action.

Scott Kujat, Thomas Cerceo, Anthony Shapiro-Rizzi and Nathan Farm filed the action against Roundy's, the Wisconsin-based parent company of Mariano's. They are both owned by Kroger.

In the action filed in the U.S. District Court for the Northern District Court of Illinous, the plaintiffs claim they were wrongly classified under the Fair Labor Standards Act. They should have been paid overtime, according to the complaint.

The replenishment managers (RMs) are "salaried employees and are classified as exempt and thus not eligible for overtime when working over 40 hours a week," the defendants argue.

But Judge Harry D. Leinenweber was deciding not on the merits of the case, but whether it can move towards being classified as a collective action on behalf of the plaintiffs and those "similarly situated."

Leinenweber noted that for conditional certification, the plaintiff must only make a “modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan."

The managers employed by the company must plan and direct store replenishment of goods, as well as promoting and maximizing profit.

"This description applies to all RMs, regardless of store location, store size, the individual managers for whom the RMs work, the RMs’ prior experience, or the RMs’ seniority and length of tenures," Leinenweber wrote.

The defendants, arguing that some discovery had already taken place, said the action should move to a second evidentiary stage to determine whether such a collective action should be allowed to proceed.

The judge disagreed, opting to certify conditional class certification as the plaintiffs met the "fairly lenient burden" under the statutes.

He also ordered the company to hand over "last known mailing addresses, last known telephone numbers, last known personal and work email addresses, dates of employment, and work locations for all proposed collective members."

Lawsuits filed under the FLSA are not the same as class actions because members have to opt-in to be part of the collective action.

Plaintiffs are represented in the action by attorneys Charles A. Head and Bethany A. Hilbert, of the Head Law Firm LLC, of Chicago, and attorneys Fran L. Rudich and Christopher M. Timmel, with the firm of Klafter Olsen & Lesser LLP, of Rye Brook, N.Y.

Roundy's is represented by attorneys with the firms of Greiman, Rome & Griesmeyer LLC, of Chicago, and Jackson Lewis P.C., of Cincinnati.

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Organizations in this Story

Greiman, Rome & Griesmeyer, PC Jackson Lewis P.C. Klafter Lesser & Olsen Roundy's The Kroger Company U.S. District Court for the Northern District of Illinois

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