United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
AUDREY G. FLEISSIG, District Judge.
Penny Davenport and three other named Plaintiffs brought this action on their own behalf and on behalf of similarly situated call center employees who worked on an hourly basis at Defendant Charter Communications, LLC ("Charter"). Plaintiffs claim that Charter violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207; the state wages and hours laws of Missouri, Kentucky, and Michigan; and Missouri common law, by failing to pay them for the time it took them to access computer applications when beginning to work and to close down computer applications at the end of work.
Plaintiffs moved for conditional collective action certification under the FLSA, and the Court granted Plaintiffs' motion, requiring that notice be disseminated to putative plaintiffs consisting of:
All persons who, between September 25, 2009 and August 31, 2011 worked as a nonsupervisory hourly employee whose primary duty was to respond to incoming calls from a queue on Charter's toll-free lines, commonly referred to as "advisors, " "representatives, " or "agents, " who were hired and had completed training before September 1, 2011, and who worked at Defendant Charter Communications, LLC's call centers located in Town and Country, Missouri; Walker, Michigan; Louisville, Kentucky; Greenville, South Carolina; Vancouver, Washington; Rochester, Minnesota; Fond du Lac, Wisconsin; and Worcester, Massachusetts, but excluding persons who were hired by Defendant but worked only as trainees.
(Docs. No. 203-1 & 204.) To date, several hundred putative plaintiffs have filed consents to join the FLSA collective action.
Plaintiff Davenport now moves (Doc. No. 140) to certify as class actions under Rule 23(b)(3) her claim for violation of the Missouri Minimum Wage Law, Mo. Rev. Stat. § 290.500, et seq., and her claims for breach of contract, quantum meruit, and unjust enrichment under Missouri common law (collectively, the "Missouri Claims"). Unlike the FLSA collective action, these Rule 23 class actions, if certified, will require individuals to opt out of the suit or be bound by the judgment in the case. See Fed.R.Civ.P. 23(c)(3); Hoffmann-La Roche, Inc. v. Sperling , 493 U.S. 165, 177 (1989) (Scalia, J., dissenting).
Charter opposes the motion for class certification and, in support of its opposition, submits several declarations of putative class members. Plaintiffs move to strike these declarations. Oral arguments were heard on the motion for class certification and the motion to strike on August 20, 2014, and the parties thereafter submitted supplemental filings. For the reasons set forth below, the Court shall DENY both motions.
Davenport and the putative class members were call center agents, alternatively known as "advisors, " "representatives, " or "agents, " employed at Charter's call center in Town & Country, Missouri during the relevant time period, whose primary duty was to receive calls from Charter's customers, not other Charter employees. The agents were scheduled to work 40 hours per week.
Davenport alleges that Charter employed uniform policies and practices that resulted in agents at its Town & Country call center working off the clock by performing activities such as logging on and off computers, opening and closing applications, and reading instructions before and after their paid shifts. Davenport alleges that these logon and logoff activities were integral and indispensable to performance of the agents' primary work duties, and agents were not properly compensated for these activities by Charter. In support of her allegations, Davenport offers her own declarations and the declaration of another employee at the Town & Country call center, James Rachal, as well as Charter's corporate documents and deposition testimony by Charter's corporate representative. On August 31, 2014, Plaintiffs filed a notice of newly-discovered evidence in support of Davenport's class certification motion, and attached declarations of two other agents at Charter's Town & Country call center, Katherine Fenerson and Valerie Mason, who previously provided declarations in support of Charter. (Doc. No. 250-1.)
The specific policies and practices which Davenport alleges resulted in off-the-clock work are as follows: (1) Charter's written punctuality policy requiring agents to be "prepared to begin at work at [their] designated start time, " which Davenport alleges required agents to perform logon activities before clocking in so they were prepared to take calls as soon as their shift began; (2) Charter's schedule compliance goal requiring a high percentage, such as 97%, of an agent's clock-in and -out times to match that agent's assigned shift-start and -end times, which Davenport alleges was negatively impacted if agents performed logon and logoff activities while clocked in; and (3) supervisor instructions and training requiring agents to perform logon and logoff activities off the clock so that agents would be fully ready and able to respond to calls from beginning to end of paid shifts. Davenport asserts that, in accordance with these policies, she regularly observed other agents performing logon and logoff activities off the clock, and Davenport offers declarations from agents employed at call centers outside Missouri stating that they were told by their trainers or supervisors that Charter's policies requiring off-the-clock logon and logoff activities were the same across all of Charter's call centers.
In connection with her argument that supervisors instructed agents to perform logon and logoff activities off the clock, Davenport testified in her deposition that she had six different supervisors during the relevant time period, and at least some of these supervisors told her to have "everything up and ready to go on [her] desk when [she] clocked in." (Doc. No. 157-1 at 5, 11, 26.) Davenport testified that while some of her supervisors told her or insinuated that she should "work without pay, " some did not. ( Id. at 12-13.) Davenport also testified that at least one of her supervisors, Steve Neifert, made "adjustments" to her time card to "ensure that [she was] paid for all [her] time worked" in that department. ( Id. at 21).
Davenport testified that agents could clock in using a hard phone and immediately begin getting paid, before logging onto the computer and loading applications, and that clocking in through the hard phone took one minute. (Doc. No. 157-1 at 13-14.) Davenport testified that agents were "discouraged" from using the hard phone. ( Id. at 18.) But at least on one occasion, July 27, 2010, Davenport's supervisor instructed her to "log in using the hard phone, pull up [her] programs and log into the Avaya system. When [she was] ready to take calls, do a soft phone reset, then go available using the soft phone." ( Id. at 48.) This was in response to an email by Davenport asking her supervisor whether she had to "start the programs before [she could] login and get paid, so [she] actually work[ed] off the clock before 8." ( Id. at 48.) Davenport testified that she was paid for all time worked on July 27, 2010 and that she "understood at least by July 28th, 2010 that [she] could always log into [her] hard phone to begin getting paid right away." ( Id. at 20.) However, Davenport also testified that the same supervisor coached her that to meet her compliance goal, she should clock in through the soft phone only after performing logon activities. ( Id. at 25.)
In connection with her argument that Charter's schedule compliance goal pressured employees to work off the clock, Davenport states that "[i]t was technically feasible' for Agents to load their programs, applications and data during aux time, ' which is paid time." (Doc. No. 142 at 5.) After July 2010, agents automatically received three minutes of "buffer" pay for the time spent logging on to the computer before clocking in, and at all relevant times, agents could be put into an "aux" state after clocking in and before clocking out, during which they were paid but were unavailable for calls. The parties agree that agents who performed logon and logoff activities during "aux" time were on the clock and were paid, but the parties dispute whether using "aux" time for these activities negatively affected agents' schedule compliance scores.
Davenport argues that "Charter repeatedly trained and coached the Agents" not to use paid "aux" time to perform logon and logoff activities because doing so "prohibited the Agents from achieving their compliance' requirement." (Doc. No. 142 at 5.) Davenport also offers two Charter memoranda, dated October 6, 2008 and January 6, 2010, which both state as to Charter's policies regarding "aux" time:
Agents should be at their desk no earlier than the time their shift begins. At this time, the agent should log into the computer. Once logged into Windows, log into the Avaya soft phone first (which will also log into hard phone). As the agent logs into other required programs, the agent may go into Auxiliary (AUX) status in the soft phone to avoid taking calls until those programs are available. If the agent is at his or her desk and unable to log into the Avaya soft phone, the agent should log into the hard phone (to indicate they are at their position) and contact the supervisor so an exception be entered into eWFM. If no exception is entered, the agent's compliance will be impacted as the agent will be in AUX while logging into the computer.
Agents are provided a 5-minute grace period for all Real Time Adherence (RTA) alarms, including the start of each shift (no exceptions should be entered if the agent is not more than five minutes late). Agents logging in more than 5 minutes after their start time will be counted as late. If logging in late is due to a computer not being available, a delay due to latency, or other technical issues, agents will log into their hard phone immediately to allow for appropriate time tracking. Agents who log in late for one of these reasons, and who are concerned about being noted as late, should contact their ...