Understanding FLSA Certification

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Motion for Conditional Certification Under the FLSA

 

The following text reflects a proposed motion concerning conditional certification of a Fair Labor Standards Act collective action and court-supervised notice to similarly situated employees.

 

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

KANSAS CITY, KANSAS

 

DONNIE LEE RAKESTRAW, JR.,

Plaintiff,

 

v. Case No. 2:25-cv-02682-JWB-TJJ

 

THE HERSHEY COMPANY, et al.,

Defendants.

 

PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION OF

FLSA COLLECTIVE ACTION AND COURT-SUPERVISED NOTICE

TO SIMILARLY SITUATED EMPLOYEES

(Pursuant to 29 U.S.C. § 216(b))

 

I. INTRODUCTION

 

Plaintiff Donnie Lee Rakestraw, Jr., appearing pro se, respectfully moves this Court pursuant to 29 U.S.C. § 216(b) for conditional certification of this action as a collective action under the Fair Labor Standards Act ("FLSA"), and for Court-supervised notice to all similarly situated current and former employees of Defendant The Hershey Company at its Edgerton, Kansas pretzel manufacturing facility.

 

Plaintiff and similarly situated employees were required to complete mandatory sanitation and personal protective equipment ("PPE") donning procedures before their recorded shift time began, without compensation, in violation of the FLSA. The physical layout of the Edgerton facility, Defendant's training materials, timekeeping records, and badge access data establish that this practice was uniform across the Edgerton facility and willful.

 

Conditional certification is appropriate because Plaintiff and all potential opt-in plaintiffs are similarly situated: they were subject to the same donning and doffing requirements, performed the same pre-shift sanitation procedures, at the same facility, under the same management, and were denied compensation for the same off-the-clock work time.

 

II. FACTUAL BACKGROUND

 

A. The Edgerton Facility Layout and Pre-Shift Requirements

 

The Edgerton facility requires all production employees to complete a mandatory sanitation and PPE donning process before entering the production floor. This process includes hand sanitation at designated sinks, donning hair nets, beard nets, ear plugs, shoe sanitization, and smocks, all of which are located in a dedicated sanitation area between the facility entrance and the production floor.

 

The time clock at the Edgerton facility is positioned at the entrance to the facility, before the sanitation area. Employees clock in at the entrance and then proceed through the sanitation area to complete mandatory preparation before entering the production floor. It is physically impossible for an employee to reach the production floor without first completing the entire sanitation and PPE process.

 

Production at the Edgerton facility begins at the scheduled shift start time. Employees were required to be present at their production stations, fully prepared and compliant with all sanitation and PPE requirements, at the moment their scheduled shift began. This requirement is reflected in Defendant's training materials, safety policies, production startup procedures, and management instructions.

 

Defendant permitted employees to clock in up to six (6) minutes prior to their scheduled shift start time. However, time recorded within this six-minute window was not treated as compensable working time, whereas clock-in occurring beyond that threshold triggered paid time. Employees were expected to utilize this limited pre-shift window to complete required sanitation and PPE donning procedures.

 

Because the mandatory pre-shift preparation process took approximately ten to fifteen minutes to complete, a portion of that required work necessarily occurred outside of compensable time.

 

B. Defendant's Training Materials Establish the Pre-Shift Requirements

 

Defendant produced and distributed training materials used at the Edgerton facility that describe the mandatory sanitation and donning and doffing process required before employees may access the production floor. These materials reflect that the pre-shift preparation process takes approximately ten to fifteen minutes to complete.

 

Because the time clock is located before the sanitation area, and because employees must complete the entire sanitation process before reaching the production floor, employees performing this mandatory pre-shift process were required to perform work before their recorded clock-in time. Defendant's records — including badge swipe data, time clock records, and payroll data — will demonstrate that employees were not compensated for all of this time.

 

C. The Practice Was Uniform Across the Edgerton Facility

 

This practice was not limited to Plaintiff. Defendant required production employees at the Edgerton facility to complete the same mandatory sanitation and PPE process before their recorded shift time. Approximately 120 or more current employees, plus an undetermined number of former employees, were subject to the same requirements and denied compensation for the same pre-shift work time.

 

The practice extended across all shifts at the Edgerton facility. The total potential collective action pool, including current and former employees, is estimated to exceed three hundred individuals based on the facility's operational history and employee turnover.

 

III. LEGAL STANDARD FOR CONDITIONAL CERTIFICATION

 

The FLSA provides that a collective action may be maintained by one or more employees on behalf of themselves and other employees "similarly situated." 29 U.S.C. § 216(b). Unlike Rule 23 class actions, FLSA collective actions require potential plaintiffs to opt into the action.

 

Courts in the Tenth Circuit apply a two-step approach to FLSA collective action certification. At the first step — conditional certification — the plaintiff bears a lenient burden of demonstrating that the proposed collective members are similarly situated. See Thiessen v. General Electric Capital Corp., 267 F.3d 1095 (10th Cir. 2001). This standard requires only a modest factual showing that the plaintiff and potential opt-in plaintiffs together were victims of a common policy or plan that violated the law.

 

At this preliminary stage, the Court does not weigh evidence, resolve factual disputes, or make credibility determinations. The Court need only determine whether Plaintiff has made a modest showing that the putative collective members are similarly situated. This threshold is intentionally low because the purpose of conditional certification is to provide potential plaintiffs with notice of the pendency of the action and the opportunity to opt in.

 

IV. ARGUMENT

 

A. Plaintiff Has Made the Required Modest Showing

 

Plaintiff satisfies the lenient standard for conditional certification. The following facts establish that production employees at the Edgerton facility were similarly situated:

 

1. Production employees were required to complete the same mandatory sanitation and PPE donning process before entering the production floor.

2. The time clock is located before the sanitation area, making it impossible to complete required preparation and reach the production floor without first performing the sanitation process.

3. Defendant's training materials describe the mandatory pre-shift process.

4. Defendant's timekeeping records will show that employees clocked in at their scheduled shift start time but could not have reached the production floor without completing the sanitation process first.

5. Defendant required employees to be present and prepared at the start of each scheduled shift, which required completion of the sanitation process before the scheduled start time.

6. Employees were not compensated for all time spent completing mandatory pre-shift sanitation and donning procedures.

 

These facts establish that Plaintiff and similarly situated employees were subject to a common unlawful practice: mandatory off-the-clock work time that was not fully compensated, in violation of 29 U.S.C. § 207.

 

B. The Proposed Collective Is Readily Identifiable

 

The proposed collective consists of all current and former production employees who worked at Defendant's Edgerton, Kansas pretzel manufacturing facility at any time within the three years preceding the filing of this motion and who were required to complete mandatory sanitation and PPE donning procedures before their recorded shift time without compensation.

 

Defendant's payroll records, badge access logs, time clock data, and employment records contain the information necessary to identify members of the proposed collective and provide them with notice of this action.

 

C. Court-Supervised Notice Is Appropriate

 

Court-supervised notice serves the remedial purposes of the FLSA by ensuring that potential plaintiffs are informed of their rights and given the opportunity to join this action. Without court-supervised notice, similarly situated employees may be unaware that they have claims or that this action is pending.

 

Plaintiff proposes a sixty (60) day opt-in period following Court-authorized notice. This period is sufficient to allow potential plaintiffs to make an informed decision about whether to join this action.

 

D. The Violation Was Willful

 

Defendant's training materials, safety policies, and production procedures demonstrate that Defendant knew employees were required to complete mandatory preparation before their scheduled shift time. Despite this knowledge, Defendant failed to compensate employees for this time. Willful violations extend the FLSA statute of limitations to three years pursuant to 29 U.S.C. § 255(a).

 

V. REQUESTED RELIEF

 

For the foregoing reasons, Plaintiff respectfully requests that this Court:

 

1. Conditionally certify this action as a collective action pursuant to 29 U.S.C. § 216(b) on behalf of all current and former production employees who worked at Defendant's Edgerton, Kansas facility within three years of the filing of this motion and who were required to complete mandatory sanitation and PPE donning procedures before their recorded shift time without compensation;

2. Authorize Court-supervised notice to all members of the proposed collective in the form attached as Exhibit A;

3. Order Defendant to produce within fourteen (14) days the names, last known addresses, email addresses, and dates of employment of all members of the proposed collective;

4. Establish a sixty (60) day opt-in period during which similarly situated employees may file Consent to Join forms with the Court;

5. Order Defendant to post the Court-authorized notice in a conspicuous location at the Edgerton facility during the opt-in period; and

6. Grant such other and further relief as this Court deems just and proper.

 

Respectfully submitted,

 

Donnie Lee Rakestraw, Jr.

Plaintiff, Pro Se

15739 Whispering Oaks Drive, Apt. 9

Paola, Kansas 66071

(913) 447-4745

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