DiCello Levitt Secure Class Certification for 5,000 Wisconsin Department of Corrections Officers in Overtime Case Against the State of Wisconsin

Oct 11, 2022

MILWAUKEE, October 11, 2022 – On September 6, DiCello Levit, together with co-counsel Gary Burger of Burger Law, LLC and Michael Flannery of Cuneo Gilbert & LaDuca, LLP, appeared in court in Milwaukee County on Plaintiffs’ motion for class certification, seeking certification of a class of more than 5,000 correctional officers and sergeants who have worked at 37 facilities across the State of Wisconsin.  Plaintiffs claim that they and the other class members should have been paid straight-time and overtime wages for time they spent working before and after their scheduled shifts, under Wisconsin’s state wage and hour law.  The State doesn’t pay officers for this time, which includes tasks like completing security checks, obtaining equipment, waiting for relief, providing pass-down briefings to relieving officers, and traveling through the facilities to and from post.

Following a comprehensive hearing, the Court granted Plaintiffs’ motion, from the bench, over the State’s objection and in the face of competing expert reports. On September 29, the Court entered its opinion and order confirming its class certification ruling. 

Importantly, in its ruling, the Court held that Plaintiffs’ damages expert’s methodology, which relies on representative sampling and creates a model of the average times spent on the work at each facility, is a manageable and acceptable way to prove damages, where the State failed to record the time at issue.  The ruling also paves the way for the ultimate adjudication of Plaintiffs’ substantive claims, where the Court held that “Wisconsin case law has shown that activity which is comparable to the pre- and post-shift activities WDC employees must complete is potentially compensable, even when being evaluated at a higher legal standard than what is required for class certification motions.”

The case is McDaniel, et al. v. Wisconsin Department of Corrections. Adam J. Levitt of DiCello Levitt, Gary K. Burger of Burger Law, LLC, and Michael J. Flannery, Charles J. LaDuca, and R. Michael Smith of Cuneo Gilbert & LaDuca, LLP, represent the correctional officers.

About DiCello Levitt

At DiCello Levitt, we’re dedicated to achieving justice for our clients through class action, business-to-business, public client, mass tort, whistleblower, and personal injury litigation. Our lawyers are highly respected for their ability to litigate and win cases—whether by trial, settlement, or otherwise—for people who have suffered harm, global corporations that have sustained significant economic losses, and public clients seeking to protect their citizens’ rights and interests. Every day, we put our reputations—and our capital—on the line for our clients.

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