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Holmes v. Kelly Services USA, LLC

United States District Court, E.D. Michigan, Southern Division

March 22, 2017

TRACIE HOLMES, Plaintiff,
v.
KELLY SERVICES USA, LLC et al. Defendants.

          ORDER DENYING DEFENDANTS' MOTIONS TO STAY CONSIDERATION OF PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION (ECF #47, 49)

          MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE

         Plaintiff Tracie Holmes (“Holmes”) is a former call center agent allegedly jointly employed by Defendants Kelly Services USA, LLC (“Kelly Services”) and Health Net Federal Services, LLC (“Health Net”) (collectively, “Defendants”). In this putative collective action, Holmes alleges that the Defendants violated the Fair Labor Standards Act, 29 U.S.C. §201 et seq. (the “FLSA”), when they failed to compensate her and the other employees at her call center for all of the time they spent working. (See, e.g., First Am. Compl. at ¶5, ECF #34 at Pg. ID 834.)

         On January 20, 2017, Holmes asked the Court to conditionally certify her proposed FLSA collective so that she could send notice of this action to potential members of the collective (the “Certification Motion”). (See ECF #40.) Defendants have now requested that the Court stay consideration of the Certification Motion pending decisions from the United States Supreme Court and the United States Court of Appeals for the Sixth Circuit that Defendants insist could moot this action in its entirety (the “Stay Motions”). (See ECF ## 47, 49.) For the reasons that follow, the Court DENIES the Stay Motions.

         I

         From August 2015 to March 2016, Holmes worked as a representative at a call center located in Hampton, Virginia. (See First Am. Compl. at ¶27, ECF #34 at Pg. ID 831.) Holmes says that the Defendants “jointly employed” her and over “250 full-time representatives” at the Hampton call center. (Id. at ¶4, ECF #34 at Pg. ID 826.) Holmes alleges that Defendants paid her and the other agents who worked at the Hampton facility on an hourly basis. (See Id. at ¶¶ 8, 27, ECF #34 at Pg. ID 826-27, 831.)

         In this action, Holmes claims that the Defendants did not fully compensate her and the other agents at the Hampton call center for all of the time they worked, including time spent “logging into various computer programs” at the start of the work day and logging out of those programs at the end of the day. (Id. at ¶5, ECF #34 at Pg. ID 826.) Defendants deny Holmes' allegations. (See Answers to First Am. Compl., ECF ## 41, 42.) They further maintain that Holmes executed an arbitration agreement that (1) requires her to arbitrate (not litigate) her dispute with Defendants and (2) prohibits her from participating in a collective action. (See, e.g., ECF #47 at ¶1, Pg. ID 1038.) In relevant part, the arbitration provision provides:

1. Agreement to Arbitrate. Kelly Services, Inc. and its subsidiaries (“Kelly” or “Kelly Services”) and I agree to use binding arbitration, instead of going to court, for any “Covered Claims” that arise between me and Kelly Services, its related and affiliated companies, and/or any current or former employee of Kelly Services or any related or affiliated company. [….]
2. Claims Subject to Agreement. The “Covered Claims” under this Agreement shall include all common-law and statutory claims relating to my employment, including, but not limited to, any claim for breach of contract, unpaid wages, wrongful termination, and for violation of laws forbidding discrimination, harassment, and retaliation on the basis of race, color, gender, and any other protected status. I understand and agree that arbitration is the only forum for resolving Covered Claims, and that both Kelly Services and I hereby waive the right to a trial before a judge or jury in federal or state court in favor of arbitration for Covered Claims.
[….]
8. Waiver of Class and Collective Claims. Both Kelly Services and I also agree that all claims subject to this agreement will be arbitrated only on an individual basis, and that both Kelly Services and I waive the right to participate in or receive money or any other relief from any class, collective, or representative proceeding. No party may bring a claim on behalf of other individuals, and no arbitrator hearing any claim under this agreement may: (i) combine more than one individual's claim or claims into a single case; (ii) order, require, participate in or facilitate production of class-wide contact information or notification of others of potential claims; or (iii) arbitrate any form of a class, collective, or representative proceeding.

(ECF #15-1 at 2-3, Pg. ID 573-74.)

         On January 20, 2017, Holmes filed the Certification Motion in which she asked the Court to:

• Conditionally certify her proposed FLSA collective;
• Implement a procedure by which Holmes could send notice of this action to “[a]ll current and former hourly call center agents who worked for Defendants [at the Hampton, Virginia call center] ...

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