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Peer v. Grayco Management LLC

United States District Court, M.D. Tennessee, Nashville Division

June 2, 2017

CORY PEER, Plaintiff,
v.
GRAYCO MANAGEMENT LLC and PHIL GRAY, Defendants.

          MEMORANDUM OPINION AND ORDER

          WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

         Pending before the Court under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., is Cory Peer's Motion to Conditionally Certify Collective Action, to Order Disclosure of Putative Members' Names and Contact Information, and to Facilitate Court Supervised Notice (Doc. No. 27), to which Grayco Management LLC (“Grayco”) and Phil Gray have responded in opposition (Doc. No. 33) and Plaintiff has replied (Doc. No. 38). For the reasons stated below, Plaintiff's Motion will be denied.

         I. Factual Background

         According to the unverified Complaint and Plaintiff's Declaration submitted in support of his Motion, the relevant factual allegations are as follows:

         Defendants own and operate approximately 20 McDonald's restaurants in Nashville, Tennessee. (Doc. No. 1, Compl. ¶ 7). Plaintiff worked at the McDonald's on Ruby Circle from November 2014 until March 2016. (Doc. No. 27-1, Peer Decl. ¶ 2).

         Plaintiff was the third shift manager at the Ruby Circle McDonald's, earning $10 per hour. (Id. ¶ 5). As a shift manager, his responsibilities included taking food and drink orders, cooking, cleaning, and “maintaining labor and sales.” (Compl. ¶ 18).

         Plaintiff claims that he regularly worked more than 40 hours per workweek and that his managers knew or should have known that he did so. (Peer Decl. ¶¶ 6, 9). He also claims that Defendants maintained a uniform timekeeping policy that automatically deducted 30 minutes from each shift he worked for an unpaid meal break, whether he actually took a break or not. Again, he claims that his managers knew or should have known that he was not taking meal breaks and not getting paid for that time. (Id. ¶¶ 7, 9).

         Plaintiff also alleges that, for some workweeks, Defendants altered his time records to reflect less time than he actually worked, thereby depriving him of receiving his overtime rate of 11/2 times his regular rate of pay of $10 per hour. Once again, he asserts that his managers knew or should have known this. (Id. ¶¶ 8, 9).

         Plaintiff contends that he was not alone in failing to receive all the wages he was due. He claims to be “personally aware of other former hourly employees” who were subjected to the same policy as he was, and “who worked more than 40 hours in a workweek but were not paid overtime pay for all hours they worked over 40 hours.” (Id. ¶¶ 10, 11).

         In response to the Complaint and Declaration, Defendants have filed the Declaration of Phil Gray, Grayco's Chief Operating Officer. In that Declaration, Mr. Gray states that Defendants actually own 24 McDonald's restaurants in Nashville, and that Plaintiff worked at two of them, first as a crew member at the Broadway McDonald's, and then at the Ruby Circle location. (Doc. No. 33-1, Gray Decl. ¶¶ 1, 3). Mr. Gray also asserts that, shortly after Grayco purchased the Nashville McDonald's franchises in October 2013, it installed a SmartClock biometric timekeeping system at each location to ensure that hours were actually and accurately recorded. The SmartClocks allow employees to clock in and out for work using their fingerprints. Employees are required to clock in at the beginning and end of every shift, and also at the beginning and end of each unpaid meal break. M r . Grayco insists that Grayco does not have an automatic-deduction policy or practice. To the contrary, employees are instructed to clock in and out at the start and end of their shifts; to clock in and out for their thirty-minute meal breaks; to not clock in until fully ready to work; and to not clock out before being fully relieved of work. Moreover, Grayco has written policies that specifically prohibit employees from working off-the-clock, require that employees be paid for all hours worked, and require that employees be paid time and one-half for all hours worked in excess of 40 hours per week. Furthermore, employees are asked to review their time records each week, to insure any necessary corrections are made, and payroll mistakes are promptly corrected.

         Defendants have also filed declarations of four general managers (at least one of whom was formerly an hourly worker for Grayco) from different Nashville McDonald's restaurants operated by Grayco. Those declarations generally track each other and indicate that time records are reviewed regularly; employees are given an opportunity to review their time clock entries; time is not deducted from the time records (unless the employee indicates there is a mistake); 30 minutes are not deducted for a meal break when an employee fails to take such a break; and employees are paid for all hours worked. (Doc. Nos. 33-5, 33-6, 33-7, 33-8).

         Finally, with his reply, Plaintiff filed a supplemental declaration. In that declaration he states:

4. During my employment, I was informed by Mike Wadram, my supervisor, that it was company policy to automatically deduct 30 minutes from each shift worked by an hourly employeee whether they took their allowed 30-minute meal break or not. I later discussed the matter with Claudia Lara, the restaurant General Manager, and she acknowledged the policy and agreed with Mike that 30 minutes would be deducted from the time for any hourly employee whether they took their allowed 30-minute break or not.
5. On numerous occasions while employed by McDonald's, I did not take a break during my shift but 30 minutes was still deducted from my time, resulting in 30 minutes of work ...

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