Jimmy John’s Managers Get Conditional Cert. In OT Case

Law360 Shayna Posses
February 21, 2019

An Illinois federal judge has granted conditional certification in a collective action accusing Jimmy John’s franchisees of misclassifying assistant store managers as exempt from overtime pay, saying the workers sufficiently showed they were subject to the same unlawful policy.

U.S. District Judge Sue E. Myerscough held Wednesday that three former Jimmy John’s assistant store managers provided enough evidence to suggest that they are similarly situated to other potential members of their collective class, giving them permission to send notices to other possible plaintiffs and start conducting discovery.

Because plaintiffs have made a modest factual showing that they and the putative collective members were victims of a common policy or plan that violated the law, the motion for conditional certification is granted, ” the judge said.

Several assistant store managers initially filed collective actions against franchisor Jimmy John’s in 2014 and 2015, accusing the sandwich chain of violating the Fair Labor Standards Act by requiring them to regularly work more than 40 hours a week despite classifying them as exempt from overtime pay. By 2016, the three suits had been consolidated in the Northern District of Illinois, with more than 600 individuals joining in.

Some of the plaintiffs who opted in subsequently brought separate lawsuits against the Jimmy John’s franchisees they worked for in other federal district courts, raising the same misclassification claims.

At the request of Jimmy John’s, U.S. District Judge Charles Kocoras paused the pending franchisee actions in March 2017, holding that resolving the litigation against the parent company first was in the interest of harmony and delaying expense and overlapping work for judges. ”

Ex-assistant managers Brittany Michelle Watt, James E. Kirkpatrick Jr. and Paul Rowland filed the present action against the related franchisees that employed them the following month, but Judge Kocoras subsequently extended his injunction to cover additional lawsuits that had cropped up, including theirs.

The Seventh Circuit  overturned the injunction  in December 2017, holding that the suits against the franchise owners weren’t duplicative of the franchisor action because they involved different defendants. In fact, the panel noted, the disputes couldn’t all be resolved in the same forum, as the Northern District lacks jurisdiction over out-of-state franchisees.

After the stay in their suit was lifted, Watt, Kirkpatrick and Rowland moved for conditional certification in May, contending that their employers Fox Restaurant Venture LLC, Fox NC Acquisition LLC and Fox SC Acquisition LLC worked closely together and applied the same policies to their assistant store managers, including misclassifying them as exempt.

Judge Myerscough granted the motion Wednesday, explaining that the burden for such a request at this stage of the litigation is fairly light. A plaintiff just needs to show “some factual nexus’ [that] connects her to other potential plaintiffs as victims of an unlawful practice, ” which the managers did in this case, the judge ruled, saying their declarations suggest that they had similar compensation, job duties and limitations on their authority.

They presented some proof that the similarities among assistant store managers stem from a common policy, as well, the judge said, pointing to Kirkpatrick’s claims that the three franchisees used nearly identical policies and procedures, required them to meet similar goals and shared manuals and other documents.

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The judge conditionally certified a collective of all current or former salaried assistant store managers from Fox-owned Jimmy John’s shops in Indiana, North Carolina and South Carolina from August 2015 to the present.

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Watt, Kirkpatrick and Rowland are represented by Elizabeth C. Chavez and Kathleen C. Chavez of Foote Mielke Chavez & O’Neil LLC, Gregg I. Shavitz and Alan Quiles of Shavitz Law Group PA, Justin M. Swartz and Michael N. Litrownik of Outten & Golden LLP, Douglas M. Werman of Werman Salas PC, Drew Legando and Jack Landskroner of Landskroner Grieco Merriman LLC, Myron M. Cherry of Myron M. Cherry & Associates LLC and Seth R. Lesser, Fran L. Rudich and Jason Conway of Klafter Olsen & Lesser LLP.

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The case is Watt v. Fox Restaurant Venture LLC et al., case number 2:17-cv-02104, in the U.S. District Court for the Central District of Illinois.