New RSR/KSR Overtime Case Against Kellogg
The Thomas v. Kellogg case is proceeding to trial in November and not open for joining at this late stage. But Getman, Sweeney & Dunn is investigating bringing another lawsuit on behalf of RSRs/KSRs for back overtime wages to allow people who did not join the original case to bring claims. If you are interested in bringing claims for back overtime wages, call us at (845) 255-9370. The call is confidential and free.
Kellogg Company, Keebler Foods Company, and Other Associated Companies
On February 26, 2013, Getman & Sweeney filed a federal lawsuit in Seattle Washington, to recover unpaid overtime wages for employees of Kellogg Company, (along with Kellogg Sales Company, Kellogg USA Inc, Keebler Holding Corp, Keebler Foods Company, and Keebler Company) throughout the country. The case challenges Kellogg’s failure to pay Territory Managers and Retail Store Representatives (RSRs) time and one half premium pay for all hours worked over 40 in a work week. Plaintiffs seek unpaid overtime wages and “liquidated” or double damages. Click here to review the complaint that has been filed in court.
All Territory Managers and Retail Store Representatives who have worked for Kellogg at any time during the prior three years, are eligible to join the case and bring their claims under federal law. To join the case, you must fill out and return a Consent to Sue form to Getman & Sweeney.
The complaint is brought as a “collective action” under the federal Fair Labor Standards Act (FLSA). And it also brings class action claims for Territory Managers who worked for Kellogg in Washington state at any time since February 26, 2010. The case has not yet been assigned to a judge. The law firm of Frank Freed Subit & Thomas LLP will also be joining Getman Sweeney in representing Plaintiffs in this case.
TRIAL DATE HAS BEEN SCHEDULED – Posted February 1, 2017
The Court has issued a scheduling Order setting trial and pre-trial dates. The trial will begin on November 27, 2017, and is scheduled to take place for 20 days. Various pre-trial deadlines have been set to prepare for trial. Of these pre-trial deadlines is an Order for both sides to engage in a mediation no later than September 8, 2017. A mediation is where both sides work with a mediator to try to come to a settlement agreement. This is required to determine if the case can be settled outside of Court, eliminating the need for trial. If both sides cannot come to an agreement, the case will proceed to trial as scheduled.
SUMMARY JUDGMENT AND CLASS CERTIFICATION RULING – Posted December 9, 2016
Judge Leighton issued a ruling denying Plaintiffs’ and Defendants’ motions for Summary Judgment, denying Defendants’ Motion to Decertify FLSA Collective Action, and denying Plaintiffs’ Motion to Certify State Law Classes in nine states. Click here for the full Decision. The ruling is a good result for the Opt-In class. It means that the claims of all the FLSA Opt-Ins will be tried at a jury trial together. We believe that a jury will understand that Plaintiffs’ primary job duties were not outside sales or any other exempt duties. We are preparing for trial and hope it is scheduled early in 2017. While the Court denied class certification for the state-law classes, Plaintiffs have the right to appeal that issue to the Ninth Circuit Court of Appeals.
We will update this website with any developments.
ORAL ARGUMENT SCHEDULED – Posted November 15, 2016
Judge Leighton has scheduled an oral argument at the federal courthouse in Tacoma, Washington on November 21 at 1:00 p.m. for the motions that were filed in late August: Plaintiffs’ and Defendants’ motions for Summary Judgment, Defendants’ Motion to Decertify FLSA Collective Action, and Plaintiffs’ Motion to Certify Class. For an explanation of these motions, see update below dated September 14, 2016.
The Oral Argument is held in person and allows attorneys from both sides to present their argument directly to the Judge. Attorneys will have the opportunity to respond to the other side’s arguments and to answer any questions the Judge asks. The Judge will not provide a ruling on these motions at the Oral Argument, but will instead take the information into consideration as he continues to review the case before making a decision.
Although Oral Argument takes place in front of a Judge, it is not a trial. It might still be several months or longer before his decision is Ordered by the Court.
SUMMARY JUDGMENT AND CLASS CERTIFICATION MOTIONS FILED – Posted September 14, 2016
On July 1, 2016, Plaintiffs and Kellogg filed their summary judgment motions with the District Court asking the Court to decide certain issues. Among Kellogg’s claims is that it does not have to pay TMs and RSRs overtime because they are exempt outside sales people. Plaintiffs argue that their primary job was not sales and therefore they are not exempt outside sales people. The Court can rule for Plaintiffs or for Defendants on these issues but it may also deny both motions and decide that the case must continue to trial for these issues to be decided by the jury.
Also on July 1, 2016, we asked the Court to certify state-law classes for the states of Washington, Missouri, New York, Ohio, Arizona, Minnesota, Kentucky, Illinois, and Wisconsin. Class certification in these nine states would allow us to bring state claims for all TMs who worked in these states within the statute of limitations, even if they have not opted into this case by signing a Consent to Sue form (please see the bottom of this page for an explanation of the difference between FLSA and state law claims). In addition, Kellogg asked the court to decertify the FLSA collective action and that all TMs and RSRs in the case file their claims on an individual basis.
Now that various motions have been submitted, the Court will issue an order deciding who can participate in this case going forward and whether or not there are factual issues that need to proceed to trial. We do not know when Judge Leighton will decide these issues. In our experience, some courts take six months or longer to resolve class certification and summary judgment motions.
DISCOVERY COMPLETE – Posted June 14, 2016
Discovery in this case is now over and both sides are in the process of composing motions regarding class certification and summary judgment. In our summary judgment motion, we will ask the Court to rule on the question of whether RSRs and TMs are misclassified as exempt from the overtime laws. We will also ask the Court to address everyone’s claims together as a class/collective action. Kellogg will ask the Court to deny Plaintiffs claims and ask that the case be broken into hundreds of separate individual cases if it does proceed. All the motions are due on July 1st, oppositions to the motions are due on July 29th, and arguments in reply to the opposition arguments are due by August 19th. After the submission for Class Certification and Summary Judgment motion, the Court will decide who can participate in this case going forward and whether or not there are factual issues that need to proceed to trial. We do not know when Judge Leighton will decide these issues. In our experience, courts take six months or longer to resolve class certification and summary judgment motions.
Near the end of discovery, the Court denied a flurry of motions by Kellogg demanding additional and burdensome discovery. After denying Kellogg’s motions, Judge Leighton ordered Kellogg to provide Plaintiffs with a copy of an internal time study that Kellogg vehemently resisted producing. Here is a copy of Judge Leighton’s Order.
MEDIATION UPDATE – Posted March 17, 2016
The parties held two additional mediation sessions with private mediator and Retired U.S. Magistrate Judge Diane M. Welsh on February 13th and 27th in Philadelphia, PA in an attempt to resolve the case. The case was stayed pending the outcome of this resolution. Despite Getman Sweeney’s best efforts, this case will now continue in litigation with the goal of completing discovery and then on to summary judgment motions and possibly a jury trial. Click here to review the Court’s Order setting various deadlines in the case.
Under the current schedule, the parties have until May 2nd to complete the discovery phase of the case. Kellogg will depose approximately 10 more plaintiffs, bringing the total to 40 plaintiffs. We will depose more Kellogg management employees in addition to those we have already deposed (Keith Oldre, Logan Groulx, Lisha Pennington, Chris Kelly, Linda Bussel, Bradley Chew, Cheryl O’Connell, James Kaminski, Randy Niles, and Scott Salmon). We will continue to seek documents from Kellogg about what are the Plaintiffs’ primary job duty. Recently, Judge Leighton ordered Kellogg to produce an internal time study that was performed by its consultants, Willard Bishop. We are waiting for Kellogg to produce that study though Kellogg has indicated it will take steps to have Judge Leighton reconsider his decision directing Kellogg to turn the study over to Plaintiffs. However, we will continue to fight for its release.
After the discovery phase is over, the parties will ask the court to rule on Plaintiffs’ motions for class certification and to rule on the question of whether RSRs and TMs are misclassified as exempt from the overtime laws (summary judgment). Those motions are due June 3, 2016. If the Court finds there to be factual issues and denies either sides’ motions, we will proceed to trial at the next available trial date.
MEDIATION UPDATE – Posted February 9, 2016
On February 13, 2016, both sides in this case will hold a second mediation session in Philadelphia before retired U.S. Magistrate Judge, Diane M. Welsh to continue their effort to resolve these claims prior to trial.
MEDIATION UPDATE – Posted October 30, 2015
On October 27, 2015, Getman Sweeney attended a mediation session with Kellogg’s attorneys in New York City before a mutually agreed-upon Mediator, retired U.S. Magistrate Judge, Diane Welsh. Unfortunately, we did not come to a settlement.
Frequently employers and employees do not reach a settlement during the first mediation session. Often the judge needs to resolve a central issue in the case before a mediated settlement can be achieved. Here, we believe that the issue of whether Kellogg misclassified the employee Plaintiffs as exempt under the Fair Labor Standards Act outside sales exemption is an issue that will need to be resolved before a settlement can be achieved. While we are disappointed that a settlement did not occur at this juncture, Getman Sweeney remains strongly committed to litigating this case through to a favorable conclusion. We will now propose a schedule to quickly complete the remaining discovery, file various motions (including to resolve the misclassification issue) and proceed as quickly as possible to trial. There may be further mediation sessions in the future.
We will provide another update after Judge Leighton approves a schedule of how the case is to proceed.
JUDGE APPROVES A STAY OF THE CASE FOR MEDIATION – Posted August 28, 2015
We have agreed with Kellogg to put our litigation on hold while we attempt to resolve your case through mediation. On August 27, 2015, Judge Leighton approved our request to pause the case so we can participate in mediation. (Click here to read the Order)
In wage and hour cases, it often happens that both sides determine that it is in their best interest to try to settle a case rather than continue litigation. This usually happens when both parties realize that many of the legal issues and facts about the strengths and weaknesses of a case are pretty clear, and that it is cost effective to try to resolve the case with the help of a mediator rather than continue the legal process. We see this as a good step, and while it is unknown if we will reach a resolution, it does mean we are making significant progress.
We have agreed to mediate the case in New York City by mid-October. If we do not settle, we will submit a schedule to the Court by October 30, 2015 to complete discovery and go to trial.
DISCOVERY UPDATE – Posted June 18, 2015
We have been busy working on the discovery phase of this lawsuit, which has recently been extended until October 9, 2015. Kellogg has turned over more than 300,000 pages of documents, emails and spreadsheets and we have turned over thousands of pages documents from many of our plaintiffs. Kellogg has deposed approximately 20 plaintiffs, and will be deposing 20 more plaintiffs before the end of discovery. We have deposed Lisha Pennington, Chris Kelly, Linda Bussel, Bradley Chew, Cheryl O’Connell, James Kaminski, Randy Niles, and Scott Salmon. We will take many more depositions of Kellogg management and IT personnel before the October 9th.
After the discovery phase is over, the parties will have an opportunity to ask the court to rule on the question of whether RSRs and TMs are misclassified as exempt from the overtime laws. Summary judgment motions are due January 12, 2016. We anticipate asking the Court to rule that Plaintiffs are entitled to judgment as a matter of law. Kellogg will likely make a corresponding motion for the Court to find that RSRs and TMs are overtime exempt. We are closing in on a Court decision on the central issue in this case though much remains to be done. If the Court denies both sides summary judgment, a jury trial is currently set for April 11, 2016.
DISCOVERY UPDATE – Posted November 19, 2014
We are currently in the discovery phase of this lawsuit in which both sides are required to provide relevant information and documents to the other side to prepare the case for trial. The scope of discovery required of opt-ins is an issue in every wage hour case and has been a significant dispute between the parties here. Judge Leighton has recently set the scope of opt-in discovery, granting Kellogg’s request to seek discovery from each opt-in, but limiting that discovery to information about job duties, pay, and hours worked. (Click here to read the Order.). Counsel for both sides met to establish an orderly procedure for obtaining discovery from the 853 individuals who have joined this case. All individuals who joined this case will receive an email from Getman Sweeney shortly. Individuals who joined this case but have not supplied Getman Sweeney with an email address will receive information via USPS.
DISCOVERY PERIOD EXTENDED – Posted October 16, 2014
Judge Leighton extended the discovery phase of this lawsuit until March 5, 2014. To date Kellogg has taken 19 depositions of RSRs and TMs. These individuals have testified very well, explaining to Kellogg the merits of this case. Plaintiffs have already taken the deposition of Kellogg’s Human Resource Director, Linda Bussell and two other employees concerning Kellogg’s IT infrastructure to obtain background information. Plaintiffs have also served discovery demands for Kellogg data and documents and have received over 100,000 pages of discovery materials which we are compiling and analyzing. In the coming months, we will schedule up to 18 additional depositions of various levels of Kellogg management and IT staff.
As a result of the Court ordered Notice, 849 class members have filled out and returned their Consent to Sue form to participate in this case. The Court deadline for joining the case was April 5, 2014 and that date has now passed. However, RSRs and TMs interested in joining the case may still file late forms with Getman Sweeney for filing with the Court, which may or may not ultimately be accepted.
1. Although the deadline to join this case has passed, Getman & Sweeney is filing late consents with the Court when they are received. The Court may ultimately be required to decide whether these late claims are allowed.
2. The FLSA statute bars overtime claims related to pay periods older than 3 years (or 2 years if the Court ultimately finds Kellogg did not violate the law willfully).
3. Filing a Consent to Sue preserves your claim as of the date it is filed.
828 TMs AND RSRs JOIN CASE AGAINST KELLOGG – Posted April 24, 2014
As a result of the Court ordered Notice, as of yesterday, eight hundred and twenty eight class members have filled out and returned their Consent to Sue form to be represented parties in this case. The Court deadline for joining the case was April 5th and that date has now passed. However, TMs and RSRs interested in being part of the case, may still file late forms with Getman Sweeney for filing with the Court because FLSA claims do not disappear when a person misses a notice deadline. FLSA claims do however disappear through the operation of the “Statute of Limitation” which is either three years or two years from the regular pay date at issue (depending on whether Kellogg is found to have acted “willfully”). So until a Consent to Sue form is filed in Court, the Statute of Limitation continues to bar claims. The remaining class members will still have the opportunity to file a Consent to Sue form in this case. By returning the form to Getman Sweeney for filing with the Court in this case, class members will assert their claims in the case.
A scheduling conference was held by District Judge Leighton on April 16th. Judge Leighton set a relatively brisk schedule for the next stages of the case. The next stage is called “discovery” which is where each side gets to take information from the other. In the electronic age, most discovery concerns electronic files (emails, company documents, etc.). Plaintiffs have already served discovery demands on Kellogg and it has begun to reply. Judge Leighton ruled that each side may take up to 20 depositions of the other side (in total). Plaintiffs already took one, and Kellogg took 6. Kellogg will get an additional 14 depositions in this case. The Court also set dates for trial and various pre-trial deadlines. A mediation (settlement conference) is set for no later than September 4, 2015 and trial is set for September 14, 2015.
664 TMs AND RSRs JOIN CASE AGAINST KELLOGG SO FAR – Posted March 20, 2014
As a result of the Court ordered Notice, as of today, Six Hundred and Sixty Four class members have filled out and returned their Consent to Sue forms to be represented parties in this case. The remaining class members will have the right to join this case by filing a Consent to Sue form and returning the form to Getman Sweeney. A class member wishing to join the other 664 class members participating in this case should be sure to complete and fax, email, or mail the Consent to Sue form to Getman Sweeney no later than April 5, 2014.
COURT APPROVES NOTICE – Posted January 30, 2014
After Judge Leighton approved the mailing of a notice to all TMs and RSRs (and related job titles) in this case, Kellogg asked the Court to reconsider its ruling and make certain changes to the form of the notice. In a ruling issued on January 24th, the Court declined to change its prior order in nearly every respect. As a result, a Notice to all class members will be mailed to class members on February 4th. Class members will have the right to join this case by filing a Consent to Sue form. A class member wishing to join this case and be represented by Getman Sweeney should be sure to complete and fax, email, or mail the Consent to Sue form to Getman Sweeney no later than April 5, 2014.
JUDGE LEIGHTON GRANTS PLAINTIFFS’ MOTION FOR COLLECTIVE CERTIFICATION – Posted January 10, 2014
The Court granted Plaintiffs’ motion for collective certification. Click here to read Judge Leighton’s Order. This Order directs Kellogg to supply names and addresses of RSRs and TMs and other job titles that may join the case to Plaintiffs within 5 days. Plaintiffs will then mail the notice to the approximately 3,000 class members who are eligible to participate in the case. Notice is important because individuals must submit a “Consent to Sue” form to Plaintiffs for filing with the Court to raise their federal Fair Labor Standards Act claims in the case.
PLAINTIFFS MOVE TO SEND NOTICE OF THE CASE TO ALL RSRs and TMs, KELLOGG COMPLETES DEPOSITIONS OF PLAINTIFFS, KELLOGG TO GIVE DEPOSITION IN EARLY OCTOBER – Posted September 26 2013
Plaintiffs filed a motion, called a “conditional certification” motion, asking the Court to approve this case as a “collective action” under the FLSA and to approva a notice to go out to all TMs and RSRs letting them know about the case and giving them the opportunity to join the case. Kellogg asked the Court to permit it to take early depositions of 6 Plaintiffs before it submitted its opposition to the motion. (Depositions are where an attorney questions a witness before a stenographer, but out of court.) The Court agreed that Kellogg’s proposed depositions could go forward. Kellogg’s attorneys took six short depositions of the named Plaintiff, Patty Thomas and five other Plaintiffs in various locations throughout the country. The depositions went extremely well for Plaintiffs and all Kellogg RSRs and TMs owe gratitude to the six individuals who gave up their time to testify for the benefit of all other workers who are part of the case. Dan Getman is now scheduled to take the deposition of the Kellogg company on October 9th in Battle Creek. Under the Federal Rules, Kellogg will designate one or more officials to testify on behalf of the company, as if they were the company. Kellogg’s opposition to the conditional certification motion is now due on October 4th, with Plaintiffs’ Reply brief due October 18th.
111 EMPLOYEES JOIN THE SUIT AGAINST Kellogg – Posted August 8, 2013
As of this date, 111 RSRs and TMs have joined the lawsuit against Kellogg Company. If you would like to join the lawsuit, please complete a Consent to Sue Form and return it to Getman & Sweeney by mail, fax, or email.
SEVERANCE CONCERNS RESOLVED – Posted April 12, 2013
Many RSRs have received layoff notices with a severance proposal. RSRs have been concerned that if they take the severance offer and sign required forms, they will be “releasing” any wage claims they have against Kellogg. Getman Sweeney has contacted Kellogg about this concern and Kellogg’s attorneys have answered that RSRs are free to accept severance and doing so does not affect an RSR’s right to file a Consent to Sue raising overtime FLSA claims in this case.
Kellogg’s attorneys have written:
“Kellogg fully understands that the release contained in its severance plan (which a limited number of RSRs have recently received pursuant to their exit from the Company), does not constitute a waiver of their FLSA rights (and it doesn’t state that it does). In other words, individuals who receive the severance plan documents are to free to assert an FLSA claim if they so choose, and they would not lose their severance or have it “clawed back” just because they did assert their FLSA rights, provided they do not violate any other terms of the severance plan or release agreement (or any other applicable agreements which the particular individual may be subject to). I refer to RSRs only, because the Company no longer uses the term “TM” – they’re all RSRs now.”
RSRs who have any question about how to assert their FLSA rights and the effect of taking severance offered should contact Kathy Weiss, paralegal at Getman Sweeney by phone.
Video Update About Case – Posted April 10, 2013
Getman Sweeney has prepared a short video concerning the lawsuit against Kellogg.
Complaint Filed – Posted 2/27/13
The document which begins a lawsuit is called a “complaint.” Plaintiffs have now filed a complaint in this case with the Western District of Washington. Click here to review the complaint that has been filed in court.
Answers to Common Questions – Posted 2/27/13
Do I have to pay to join the case?
No. There are no up-front charges or costs to joining this case. The attorneys are handling this case on a contingent basis and will only be paid a fee when we win through a settlement or final judgment. And, under both the federal and state wage-and-hour law, when plaintiffs win an overtime case, defendants must pay the plaintiffs’ costs and attorneys’ fees.
Which employees can be part of this lawsuit?
All Territory Managers and Retail Store Representatives who have worked for Kellogg at any time during the prior three years in a non-supervisory capacity, are eligible to join the case and bring their claims under federal law. To join the case, you must fill out and return a Consent to Sue to counsel. Click here for the Consent to Sue.
What work locations are covered by this lawsuit?
The claims in this lawsuit cover the entire United States. If you worked for Kellogg any where in the country, you may join this case.
What claims are covered in this case?
The lawsuit at present covers claims for overtime pay under the federal Fair Labor Standards Act (“FLSA”) and under Washington wage-and-hour law. The specific violations claimed are that Kellogg did not pay the class members overtime wages even though the law requires it to do so.
How do I join the case?
To bring claims under the FLSA for back wages and an equal amount of liquidated damages, you must affirmatively join the case by filing a Consent to Sue. Employees alleging violations under the Washington state wage-and-hour law will be automatically included in the case if the Court certifies the class action. Consent to Sue.
What damages are sought?
Damages sought under the FLSA include back overtime pay, an equal amount of liquidated damages, attorneys’ fees, and any costs of litigating the case. Damages for Washington wage-and-hour law claims include back overtime pay, double damages, interest, and fees and costs.
What is the difference between the FLSA and state law claims?
All the claims are based on the same facts – Kellogg did not pay the class members the overtime wages that the law requires—and many of the available damages are the same under both laws. The primary difference in the claims is that the state overtime law claims may provide for a longer period of recovery of back overtime pay and/or additional damages such as interest.
The FLSA allows claims for overtime wages going back two years (or three years if the employer acted willfully) from when someone affirmatively joins the case by filing a Consent to Sue. You must send us a signed Consent to Sue to bring FLSA claims in this action. Click here for the Consent to Sue form for this case. The Washington wage-and-hour claims go back to February 26, 2010. The Washington law allow for interests on unpaid back wages while federal law provides for liquidated damages in lieu of interest.
How far back can claims be made?
Under the FLSA, you are entitled to make claims for the period extending back three years (two years if the employer is ultimately found not to have acted willfully) from the date your Consent to Sue Form is filed in Court. This three (or two) year period is called the “statute of limitation.”
Can I wait to file my Consent to Sue form?
You are not part of the FLSA part of the case until your Consent to Sue Form is returned to the plaintiffs’ attorneys and then filed with the Court. If you delay in filing the Consent to Sue, part or all of your FLSA claims may be barred by the “statute of limitation.” Once a Notice is authorized by the Court, you must generally return the Consent to Sue form within the terms of the notice or the Court may not allow you to join this case. Consent to Sue form .
Can Kellogg fire me or take action against me for joining the case?
The law prohibits retaliation for joining an overtime lawsuit. If any employee suffered retaliation, Kellogg could be liable for at least double the injury caused to the employee, and possibly additional damages such as punitive damages. Notify us immediately if you think any retaliation has occurred. Retaliation is rare in overtime cases, because an employer can suffer such serious penalties.
Can Kellogg contact me about this case?
Employers are generally permitted to contact unrepresented employees about a case, that is, until they have filed a consent to sue. Nevertheless, employers and their attorneys make it a regular practice to speak with current employees. Even though they are not permitted to do so, employers and their counsel have in many cases tried to discourage employees from joining wage hour cases. And they have tried to get employees to make a statement that can later harm their ability to join a lawsuit or otherwise interfere with their claims. Here are the rules for employer attorney contact with employees about a case: First, employers’ attorneys should advise employees that they should secure their own counsel before speaking with the attorney. Attorneys for the employer may not give employees legal advice. Employers’ attorneys are not permitted to give false or misleading information about a case. They are required to inform an employee that they represent the company and that the employee is not required to give a statement. Statements that employees give to employers or their lawyers are generally sought to defend the company against the suit seeking back wages the company may owe its employees, including wages owed to the employee giving the statement. Getman Sweeney strongly believes that employees who may have back wage claims should not give statements to an employer or its attorneys without receiving legal advice first. If you are asked to provide information or give a statement, you can contact Getman Sweeney immediately. The call is free and confidential.