MILWAUKEE, October 11, 2022 – On September 6, DiCello Levitt’s Labor and Employment Litigation Chair, Laura Reasons, and Partner Christopher Stombaugh, 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. “On behalf of the more than 5,000 hard-working correctional officers who aren’t paid for a significant amount of pre- and post-shift time inside state prisons, that we believe is compensable working time, the ruling is a significant milestone,” stated Laura Reasons.
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. Laura E. Reasons, Christopher D. Stombaugh, and 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.
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