Sherleti Freeman v. SL Greenfield, LLC

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 8, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP2103 Cir. Ct. No. 2020CV5706

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

SHERLETI FREEMAN,

PLAINTIFF-RESPONDENT,

V.

SL GREENFIELD, LLC AND SENIOR LIFESTYLE CORPORATION,

DEFENDANTS-APPELLANTS.

APPEAL from an order of the circuit court for Milwaukee County:
J.D. WATTS, Judge. Affirmed.

Before White, C.J., Geenen and Colón, JJ.

¶1 GEENEN, J. Sherleti Freeman, a former senior care employee of
SL Greenfield, LLC and Senior Lifestyle Corporation (collectively, “SL
Greenfield” or “Defendants”), alleges on behalf of herself and all other similarly
situated senior care employees that SL Greenfield engaged in systemic violations
No. 2023AP2103

of Wisconsin’s wage payment and collection laws.1 This case has been to the
court of appeals once before. Freeman v. SL Greenfield, LLC, No. 2021AP1262,
unpublished slip op. (WI App July 11, 2023). In that appeal, we vacated the
circuit court’s order granting Freeman’s class certification motion because it was
insufficiently detailed under WIS. STAT. § 803.08(11)(a). We remanded the
matter, and the remand court reinstated the circuit court’s order in a thirteen-page
written decision.2

¶2 SL Greenfield now appeals the remand court’s order granting
Freeman’s class certification motion. We affirm.

BACKGROUND

¶3 On September 28, 2020, Freeman filed a complaint on behalf of
herself and all other similarly situated senior care employees alleging that SL
Greenfield engaged in systemic violations of Wisconsin’s wage payment and
collection laws at several independent living and assisted living facilities
throughout Wisconsin. Specifically, Freeman alleges that SL Greenfield
unlawfully failed to pay certain senior care workers for meal periods lasting fewer
than thirty minutes, resulting in the denial of compensation and overtime pay.

1
See WIS. STAT. §§ 103.001 et seq., 104.01 et seq., 109.01 et seq. (2023-24); WIS.
ADMIN. CODE §§ DWD 272.001, 274.01 (2023-24). All references to the Wisconsin Statutes and
Administrative Code are to the 2023-24 versions unless otherwise noted.
2
The Honorable Christopher R. Foley issued the first order granting Freeman’s class
certification motion. That order was vacated on appeal. Freeman v. SL Greenfield, LLC,
No. 2021AP1262, unpublished slip op. ¶¶1, 31 (WI App July 11, 2023). We refer to Judge Foley
as the circuit court. On remand, the Honorable J.D. Watts issued a thirteen-page written decision
granting Freeman’s class certification motion. We refer to Judge Watts as the remand court.

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¶4 Freeman served the original summons and complaint, and later an
amended summons, on SL Greenfield. SL Greenfield did not respond to
Freeman’s lawsuit. Eventually, Freeman moved for class certification which
included two affidavits and numerous exhibits. SL Greenfield did not respond to
the motion, but an attorney representing SL Greenfield filed a notice of
appearance shortly before the class certification motion hearing and then appeared
at that hearing. The circuit court rejected SL Greenfield’s request for more time to
investigate the lawsuit and granted Freeman’s motion as unopposed, defining the
class as follows: “All current and former hourly-paid, non-exempt employees
employed by Defendants in the State of Wisconsin from September 28, 2018
through to the date that Notice of the class is given[.]”

¶5 SL Greenfield believed that the class certification order did not
comply with WIS. STAT. § 803.08(11)(a), requiring circuit courts in class actions
to set forth in writing “all reasons why the action may be maintained” and
describing “all evidence in support” of the determination.” The circuit court
supplemented its reasoning in a letter memorandum, but SL Greenfield eventually
appealed the class certification order to this court on the basis that it lacked
sufficient detail.

¶6 We agreed with SL Greenfield. We vacated the circuit court’s order
because the circuit court’s written decision was insufficiently detailed to satisfy
the plain language of WIS. STAT. § 803.08(11)(a). We remanded the matter for
further proceedings consistent with our opinion.

¶7 On October 24, 2023, the remand court reinstated the circuit court’s
order granting Freeman’s class certification motion and issued a thirteen-page

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written order. The order set forth the remand court’s reasons for granting the
motion and described the evidence in support of that decision.

¶8 SL Greenfield appeals the remand court’s October 24, 2023 order
granting Freeman’s class certification motion. Additional factual details will be
discussed as they become relevant.

DISCUSSION

¶9 SL Greenfield makes two substantive challenges to the order. First,
SL Greenfield argues that the remand court erroneously exercised its discretion
when it granted Freeman’s motion because two statutory prerequisites to class
certification were not met, namely, “commonality” and “predominance.” Second,
SL Greenfield argues that approximately 1,500 members of the proposed class
signed class action waivers and should be excluded from any class certified in this
litigation. We discuss each argument in turn.

I. The remand court did not erroneously exercise its discretion when
it granted Freeman’s class certification motion.

¶10 SL Greenfield argues that Freeman’s motion for class certification
was insufficient in two respects.3 First, SL Greenfield says that the
“commonality” requirement was not met because determining whether a violation
occurred requires analyzing several issues that have individual, fact-specific

3
Freeman argues both that SL Greenfield lacks standing and waived its right to appeal
the remand court’s certification order. We reject Freeman’s arguments. Standing and waiver are
not jurisdictional and are, instead, matters of judicial policy. Sussex Tool & Supply, Inc. v.
Mainline Sewer & Water, Inc., 231 Wis. 2d 404, 409 n.2, 605 N.W.2d 620 (Ct. App. 1999)
(“[B]oth standing ... and waiver are rules of judicial policy rather than jurisdictional
prerequisites.”). Even if it were permissible for us to dismiss SL Greenfield’s appeal on the basis
of standing or waiver, we instead choose to address the merits of SL Greenfield’s arguments.

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answers that are not common across all class members. Second, SL Greenfield
argues that because there are no common issues, they cannot “predominate” over
the issues affecting individual members.

¶11 “A [circuit] court’s decision whether to certify a class under [WIS.
STAT.] RULE 803.08 is vested in its reasoned discretion.” Hermanson v. Wal
Mart Stores, Inc., 2006 WI App 36, ¶3, 290 Wis. 2d 225, 711 N.W.2d 694. “We
will uphold a [circuit] court’s determination if it examines the relevant facts,
applies a proper legal standard and, in a rational process, reaches a conclusion that
a reasonable judge could reach.” Cruz v. All Saints Healthcare Sys., Inc., 2001
WI App 67, ¶11, 242 Wis. 2d 432, 625 N.W.2d 344.

¶12 We begin with the language of the statute. State ex rel. Kalal v.
Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.
Before an action may be certified as a class action, the party seeking certification
must first establish a number of statutory prerequisites, including that “[t]here are
questions of law or fact common to the class” and that these common questions
“predominate over any questions affecting only individual members[.]” WIS.
STAT. §§ 803.08(1)(b), (2)(c); Hammetter v. Verisma Sys., Inc., 2021 WI App 53,
¶¶7-8, 399 Wis. 2d 211, 963 N.W.2d 874.

¶13 In Wal-Mart Stores, Inc. v. Dukes, the Supreme Court clarified the
commonality requirement, stating that “‘[w]hat matters to class certification ... is
not the raising of common ‘questions’—even in droves—but rather, the capacity
of a class-wide proceeding to generate common answers apt to drive the resolution

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of the litigation.’”4 Id., 564 U.S. 338, 350 (2011) (citation omitted).
“Commonality” requires a plaintiff to demonstrate that the proposed class’s claims
“depend upon a common contention” that is “of such a nature that it is capable of
class[-]wide resolution—which means that determination of its truth or falsity will
resolve an issue that is central to the validity of each one of the claims in one
stroke.” Id.

¶14 On the issue of predominance, we have explained that “[t]he guiding
principle behind predominance is whether the proposed class’s claims arise from a
common nucleus of operative facts and issues.” Hammetter, 399 Wis. 2d 211,
¶23 (quoting Beaton v. SpeedyPC Software, 907 F.3d 1018, 1029 (7th Cir. 2018)).
Predominance “asks whether the common, aggregation-enabling, issues in the case
are more prevalent or important than the non-common, aggregation-defeating,
individual issues.” Brayman v. KeyPoint Gov’t Sols., Inc., 83 F.4th 823, 837-38
(10th Cir. 2023) (citation omitted).

¶15 SL Greenfield argues that commonality is lacking in this case
because determining whether a violation occurred requires analyzing:

(1) whether individuals voluntarily clocked in to work even
though they had a full 30 minute meal break provided by
Defendants; (2) whether individuals actually performed any
duties that would qualify as compensable work; and
(3) whether Defendants had actual or constructive

4
When analyzing Wisconsin statutes governing class action lawsuits, we are permitted
to look at federal cases because WIS. STAT. § 803.08 was revised and adopted “with the express
purpose of harmonizing Wisconsin’s class action statute with the federal class action statute and
federal case law.” Harwood v. Wheaton Franciscan Servs., Inc., 2019 WI App 53, ¶2, 388 Wis.
2d 546, 933 N.W.2d 654; see also Luckett v. Bodner, 2009 WI 68, ¶29, 318 Wis. 2d 423, 769
N.W.2d 504 (explaining that when a state rule mirrors a federal rule, state courts may “‘consider
federal cases interpreting the rule to be persuasive authority’” (citation omitted)).

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No. 2023AP2103

knowledge that individuals were working during their meal
breaks.

Similarly, SL Greenfield says that common issues cannot predominate over non-
common issues because “individualized proof will be necessary as to the
occurrence and nature of each employee’s alleged ‘on-duty’ meal periods.”

¶16 We disagree with SL Greenfield and conclude that the remand court
did not erroneously exercise its discretion when it granted Freeman’s class
certification motion. The remand court’s order, supported by the record, shows
both that “[t]here are questions of law or fact common to the class” and that these
common questions “predominate over any questions affecting only individual
members[.]” WIS. STAT. §§ 803.08(1)(b), (2)(c).

¶17 Like the remand court, we examine the relevant facts. The record,
unopposed by SL Greenfield, demonstrates that all senior care employees at SL
Greenfield’s Wisconsin locations, including Freeman, were subject to SL
Greenfield’s uniform timekeeping policies and practices. Specifically, all non-
exempt, hourly employees were required to record their hours of work at the
beginning and ending of the work day and at meal times. In order to do so,
employees clocked in and out of an ADP workstation that maintains a transaction
history as to each senior care employee, including at meal times. SL Greenfield’s
expectation was that once a senior care employee clocked in using the ADP
system, the employee immediately began performing compensable work.
Likewise, SL Greenfield’s expectation was that once a senior care employee
clocked out using the ADP system, the employee immediately ceased performing
compensable work.

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¶18 ADP automatically calculates the duration of compensable work
between actual clock-in and clock-out times, but SL Greenfield rounded these
exact times to the nearest quarter hour under its “seven-minute rule” for
compensation purposes. For example, on January 28, 2020, Freeman clocked in at
6:31 a.m. and clocked out at 2:44 p.m. At 11:12 a.m., Freeman clocked out for her
meal period, and at 11:40 a.m., Freeman clocked back in to work. However, SL
Greenfield rounded Freeman’s actual work time to 6:30 a.m. and 2:45 p.m. and
11:15 a.m. and 11:45 a.m., respectively, for a total of 7.75 work hours after
deducting 0.50 hours from Freeman’s workday to account for the rounded-off,
thirty-minute meal period. Put another way, the allegation is that SL Greenfield’s
rounding system may record a meal break lasting fewer than thirty minutes as
having lasted a full thirty minutes.

¶19 The remand court concluded that the commonality requirement was
satisfied because all senior care employees in Wisconsin, including Freeman, used
the ADP system to record their work time and were subject both to SL
Greenfield’s “seven-minute” rounding rule and its expectation that employees
immediately began compensable work upon clocking in. Citing WIS. ADMIN.
CODE § DWD 272.12(2)(c), the remand court concluded that “only bona fide meal
periods that are duty free and last at least thirty consecutive minutes in duration
are non-compensable.” That rule sets forth the definition of a “rest period” and a
“bona fide meal period” as follows:

1. Rest. Rest periods of short duration, running less than
30 minutes are common in industry. They promote the
efficiency of the employee and are customarily paid for as
working time. They must be counted as hours worked.
Compensable time of rest periods may not be offset against
other working time such as compensable waiting time or
on-call time.

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2. Meal. Bona fide meal periods of 30 minutes or more are
not work time. Bona fide meal periods do not include
coffee breaks or time for snacks. These are rest periods.
The employee must be completely relieved from duty for
the purposes of eating regular meals. Ordinarily 30
minutes or more is long enough for a bona fide meal
period. The employee is not relieved if they are required to
perform any duties, whether active or inactive, while
eating. For example, an office employee who is required to
eat at their desk or a factory worker who is required to be at
their machine is working while eating.

WIS. ADMIN. CODE § DWD 272.12(2)(c). The common question, then, is as
follows: Is a break taken by a class member lasting fewer than thirty consecutive
minutes a “rest period,” in which case SL Greenfield owes compensation, or a
“bona fide meal period,” in which case SL Greenfield does not owe
compensation? The answer to this common question is “‘apt to drive the
resolution of the litigation.’” Dukes, 564 U.S. at 350 (citation omitted).

¶20 SL Greenfield’s arguments to the contrary are unpersuasive and
based primarily on non-binding authority. SL Greenfield argues that WIS. ADMIN.
CODE § DWD 274.02(3) defeats commonality because an “on-duty meal period”
is defined as “a meal period where the employer does not provide at least 30
minutes free from work.” In other words, SL Greenfield says, “the compensability
of a meal period depends on the amount of time that the employer provides, not on
the amount of time that the employee chooses to take[,]” and “[w]hether meal
periods shorter than 30 minutes are compensable depends, then, on
whether: (1) the employer required the employee to resume work sooner than 30
minutes; or (2) the employee voluntarily returned to work before the allotted 30-
minute meal period was over.”

¶21 However, as Freeman points out, SL Greenfield focuses on the
wrong administrative rule and, therefore, the wrong type of meal period at issue in

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this case. Put another way, the claim is not that Freeman should be compensated
for “on-duty meal periods” under WIS. ADMIN. CODE § DWD 274.02(3), but
rather, that SL Greenfield violated WIS. ADMIN. CODE § DWD 272.12(2)(c) by
failing to pay employees for periods of time that Freeman contends are not bona
fide meal periods under § DWD 272.12(2)(c)2., and are instead compensable rest
periods under § DWD 272.12(2)(c)1.5 Indeed, the plain language of § DWD
272.12(2)(c) set forth above creates a bright-line rule: a break running fewer than
thirty consecutive minutes in duration cannot, by definition, be a bona fide meal
period.

¶22 An “on-duty meal period” under WIS. ADMIN. CODE § DWD
274.02(3), on the other hand, provides:

The employer shall pay all employees for on-duty meal
periods, which are to be counted as work time. An on-duty
meal period is a meal period where the employer does not
provide at least 30 minutes free from work. Any meal
period where the employee is not free to leave the premises
of the employer will also be considered an on-duty meal
period.

SL Greenfield erroneously concludes that because a compensable “on-duty meal
period” is one where an employer “does not provide at least 30 minutes free from
work,” then a non-compensable “off-duty meal period” is one where an employer
“provides at least 30 minutes free from work,” but that is not what § DWD
274.02(3) says, and it flatly ignores that the definition of a “bona fide meal period”

5
Of course, employers are not powerless in a situation where an employee regularly cuts
short an employer-provided, thirty-minute, duty-free meal period in order to receive
compensation for that time as a rest period. The employer’s recourse in such a situation is to
discipline or terminate the employee, not to withhold compensation. See Secretary, U.S. Dep’t of
Labor v. East Penn Mfg. Co., 123 F.4th 643, 649 (3d Cir. 2024).

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under WIS. ADMIN. CODE § DWD 272.12(2)(c)2. lacks the “does not provide”
language at the crux of SL Greenfield’s argument.

¶23 Moreover, SL Greenfield’s argument self-destructs under its own
premises. If it were true that what mattered in this litigation is the length of time
routinely and uniformly provided by SL Greenfield for meal periods, the answer to
that common question (i.e., did SL Greenfield actually provide employees at least
thirty minutes free from work, a claim that lacks evidentiary support on this
record) could completely defeat liability for the class. That is exactly the kind of
common question with a common answer that is appropriate for resolution as a
class action. See Dukes, 564 U.S. at 350.

¶24 SL Greenfield additionally posits three questions that it says are
individual questions defeating commonality:

(1) whether individuals voluntarily clocked in to work even
though they had a full 30 minute meal break provided by
Defendants; (2) whether individuals actually performed any
duties that would qualify as compensable work; and
(3) whether Defendants had actual or constructive
knowledge that individuals were working during their meal
breaks.

¶25 SL Greenfield ignores that, on this record, these questions have
common answers that are apt to drive resolution of the litigation. See id. The
record supports the remand court’s finding that: (1) SL Greenfield is aware,
through ADP records, of the exact clock-in and clock-out times for its employees;
(2) SL Greenfield’s “seven minute rule” could result in meal periods lasting fewer
than thirty minutes being recorded as lasting a full thirty minutes for compensation
purposes; and (3) SL Greenfield’s expectation is that an employee immediately
begins compensable work upon clocking in. Likely a result of not having opposed

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Freeman’s certification motion, there is no evidence to counter these findings, and
if proven, the result would be liability on a class-wide basis.

¶26 SL Greenfield cites several non-binding authorities to support its
view that “the compensability of a meal period depends on the amount of time that
the employer provides, not on the amount of time that the employee chooses to
take.” Whether to certify a class is within the sound discretion of the circuit court,
and by citing these non-binding authorities, SL Greenfield appears to argue that
the remand court did not apply the proper legal standard. State v. Davis, 2001 WI
136, ¶28, 248 Wis. 2d 986, 637 N.W.2d 62 (“An erroneous exercise of discretion
results when the exercise of discretion is based on an error of law.”). We are not
persuaded that a circuit court’s failure to follow, analyze, or even consider non-
binding authority can constitute an error of law, and SL Greenfield cites no
authority to the contrary.

¶27 We are satisfied that the remand court, adopting the interpretation of
the administrative rules proposed by Freeman and as affirmed in this decision,
constitutes a “proper legal standard.” The record, as described above and by the
remand court in its written decision, supports the conclusion that common
questions exist in this case, and the common answers they generate are apt to drive
the resolution of the litigation.

¶28 On the issue of predominance, SL Greenfield argues that because
commonality is lacking, common questions cannot predominate over individual
questions. This is simply a rehashing of SL Greenfield’s argument against
commonality, and it can be rejected for the same reasons that we conclude
commonality has been satisfied. Nonetheless, we independently conclude that the
“‘class’s claims arise from a common nucleus of operative facts and issues[,]’”

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Hammetter, 399 Wis. 2d 211, ¶23, namely, the uniform ADP timekeeping system,
the application of the “seven-minute rule” to meal periods, the operation of the
same statutes and administrative rules, and SL Greenfield’s expectation that
employees would immediately begin compensable work upon punching in to
work.

¶29 In sum, the remand court “examine[d] the relevant facts, applie[d] a
proper legal standard and, in a rational process, reache[d] a conclusion that a
reasonable judge could reach.” Cruz, 242 Wis. 2d 432, ¶11. Accordingly, we
conclude that the remand court did not erroneously exercise its discretion when it
granted Freeman’s class certification motion.

II. SL Greenfield waived its right to enforce the class waiver
agreements against members of the class in this litigation.

¶30 SL Greenfield argues that approximately 1,500 members of the
proposed class signed an agreement “not to participate as a member or
representative in any multi-plaintiff, class, collective or representative action”
against SL Greenfield. We conclude that SL Greenfield waived its right to enforce
the class waiver agreements against members of the class in this litigation.

¶31 WISCONSIN STAT. § 802.02(3) explicitly lists “waiver” as an
affirmative defense that “a party shall set forth affirmatively” in a responsive
pleading.6 SL Greenfield seeks to assert the class waiver agreements to all class
members that signed them, including Freeman. SL Greenfield’s argument

6
There are ten defenses enumerated in WIS. STAT. § 802.06(2) that may be brought by
motion, but none of those defenses apply to SL Greenfield’s attempt to enforce the class waiver
agreements. Even if they did, SL Greenfield would still have waived this defense because it
failed to assert it in either a responsive pleading or by motion. Maple Grove Country Club Inc.
v. Maple Grove Ests. Sanitary Dist., 2019 WI 43, ¶45, 386 Wis. 2d 425, 926 N.W.2d 184.

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“rais[es] new facts and arguments that, if true, will defeat the plaintiff’s ... claim
even if all allegations in the complaint are true.” Maple Grove Country Club Inc.
v. Maple Grove Ests. Sanitary Dist., 2019 WI 43, ¶34, 386 Wis. 2d 425, 926
N.W.2d 184 (emphasis omitted) (defining “affirmative defense”).

¶32 Affirmative defenses are waived if they are not set forth in a
responsive pleading. Id., ¶56. SL Greenfield has not filed a responsive pleading,
so we reject as waived SL Greenfield’s assertion that class waiver agreements may
be enforced against individuals that otherwise meet the class definition certified by
the circuit and remand courts.

CONCLUSION

¶33 For the foregoing reasons, we conclude that the remand court did not
erroneously exercise its discretion when it granted Freeman’s class certification
motion, and SL Greenfield waived its right to enforce the class waiver agreements
in this litigation.

By the Court.—Order affirmed.

Recommended for publication in the official reports.

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