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Anderson v. Minacs Group USA, Inc.

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

May 9, 2017

BRENDA ANDERSON, individually and on behalf of others similarly situated, Plaintiff,
v.
THE MINACS GROUP USA INC., Defendant.

          OPINION AND ORDER GRANTING PLAINTIFF'S PRE-DISCOVERY MOTION FOR CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [11]

          HONORABLE NANCY G. EDMUNDS JUDGE

         On November 7, 2016, Plaintiff Brenda Anderson commenced this action on behalf of herself and other similarly situated current and former employees of Defendant, The Minacs Group (USA) Inc., alleging that Defendant violated the federal Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., by failing to compensate Plaintiff and other call center representatives for all work activities they performed and failing to pay overtime for work in excess of 40 hours per week. Plaintiff further alleges that Defendant unlawfully retaliated against her by terminating her employment after she complained that she had not received overtime pay to which she was entitled under the FLSA.

         Through the present motion filed on December 30, 2016, Plaintiff requests that the Court (i) conditionally certify a collective action under the FLSA, and (ii) approve a proposed notice to be issued to the members of this putative class, consisting of all current and former hourly customer service representatives who worked at Defendant's Farmington Hills, Michigan call center during the past three years. Plaintiff further asks that Defendant be compelled to identify all potential members of this putative class and provide their contact information, and that the putative class members be granted a period of sixty days to submit notices stating that they wish to join this class.

         On April 26, 2017, the Court heard oral argument on Plaintiff's motion. For the reasons stated more fully below, the Court GRANTS this motion, except to the extent that Plaintiff seeks authorization to distribute notice to the putative class via text message.

         I. FACTS

         A. The Parties

         The Defendant company, The Minacs Group (USA) Inc., is a business and technology support service provider for clients in a wide range of industries, including manufacturing, retail, banking, health care, and the public sector. Defendant's headquarters is located in Farmington Hills, Michigan.[1]

         At all relevant times, Defendant's Farmington Hills office has been the site of a call center, in which hourly customer service representatives (“Representatives”) handle telephone calls from customers of Defendant's clients. Representatives report to Team Leaders, each of whom manages multiple Representatives, and Team Leaders, in turn, report to the Team Manager. Each of Defendant's call centers has multiple “campaigns, ” or client-specific programs, and each of the company's Representatives works for a specific campaign and receives training that is tailored to a particular client's computer systems and customer needs.

         The named Plaintiff, Brenda Anderson, was employed as a Representative in Defendant's Farmington Hills call center from approximately September 2011 to October 2015. According to Defendant, Plaintiff worked on the Consumers Energy campaign, one of multiple campaigns operating out of Defendant's Farmington Hills office. At the time of her discharge, Plaintiff's pay rate was $11.25 per hour. Since this suit was brought, three additional individuals who worked as Representatives in Defendant's Farmington Hills office - Alicia Currie, Terra Page, and Marcus Van - have given their written consent to join this suit as plaintiffs.[2]

         B. Plaintiff's Supporting Declarations

         In support of the present motion, Plaintiff has submitted declarations from herself and another former Representative, Alicia Currie. Plaintiff states in her declaration that as a Representative employed at Defendant's Farmington Hills call center, her “primary duty was answering telephone calls regarding billing and other account activity from customers of [Defendant's] clients.” (Plaintiff's Motion, Ex. 3, Anderson Decl. at ¶ 5.) In handling these calls, Plaintiff “performed work on a computer supplied by [Defendant], including reviewing customer accounts, preparing forms for customers, transcribing notes from calls for other representatives, and reading and sending work emails.” (Id.)

         At the beginning of each shift, Plaintiff had to perform a number of tasks before she could begin to accept incoming customer calls. First, she had to “enter[] a security code to enter [her] assigned office concourse” and “walk[] to [her] cubicle[].” (Id. at ¶ 10.) Plaintiff then “logg[ed] into [her] work computer[] and Windows operating system[], ” and began “loading applications (including one called ‘Citrix') which enabled [her] to review customer accounts, prepare forms for customers, and transcribe notes form calls for other representatives.” (Id.) Once these applications “were fully open and loaded, [Plaintiff] accessed [Defendant's] telephone system ‘IEX, ' which enabled [her] to start receiving inbound calls.” (Id.)

         Plaintiff estimates that “due to delays in [Defendant's] computer systems, it took anywhere from 3-10 minutes on most days for the required computer applications to open and load.” (Id.) To ensure that this process was completed prior to the beginning of her scheduled shift, Plaintiff was instructed by the individual who trained her, Ken Ford, and her manager, Margarita Vasquez, that she should arrive fifteen minutes before her scheduled shift. (Id. at ¶¶ 11-12.) In light of these directives, Plaintiff “frequently arrived at the office concourse and began logging into [her] computer[] and opening applications approximately fifteen (15) minutes before the start of [her] scheduled shift[], ” and she observed other Representatives doing likewise. (Id. at ¶ 14.) If she was able to complete this process before the start of her scheduled shift, Plaintiff would “spend the remaining time reviewing work e-mails that contained information necessary for [her] to perform [her] duties” as a Representative. (Id.)

         Plaintiff states that she and her fellow Representatives were not paid for the time spent on these preparatory tasks. (Id. at ¶ 15.) Although Defendant “maintained a formal policy - applicable to all representatives - of allowing representatives to submit requests to be paid for time spent waiting for computer applications to load, ” Plaintiff states that the actual company practice was “not [to] pay for pre-shift time, even if a representative requested to be paid for it.” (Id.) Plaintiff further asserts that “[o]n many occasions [she] followed [Defendant's] protocol for requesting to be paid for pre-shift time, ” but that each such request was “ignored.” (Id.)

         Plaintiff next states that Defendant “frequently denied [her] . . . hourly compensation for time during [her] shift[] in which [she] was not engaged in telephone calls with customers, ” but instead was performing such tasks as “reviewing customer accounts, preparing forms for customers, transcribing notes from calls for other representatives, reading and sending work emails, [and] troubleshooting connectivity issues with [Defendant's] computer and telephone systems.” (Id. at ¶ 17.) Plaintiff also asserts that Defendant's timekeeping system experienced “persistent irregularities” that would result in employees “randomly” being designated as “no call” or “no show” and being denied pay for their work. (Id.)

         Plaintiff states that she “frequently worked over forty (40) hours per week, ” including Monday through Friday and “additional shifts on Saturdays.” (Id. at ¶ 4.) Nonetheless, on one occasion in September of 2015, Plaintiff received a paycheck that reflected “significantly fewer overtime hours than [she] had worked.” (Id. at ¶ 18.) When Plaintiff looked into this issue, she was advised by her Team Leader, Tiara Milton, that her clocked hours had been “reduced . . . to reflect only the time [she] spent engaged in telephone calls with customers.” (Id.) Milton further advised Plaintiff that “she was required to alter [Plaintiff's] time in this manner due to [Defendant's] corporate policy, ” which entailed Team Leaders “manually reduc[ing] representatives' clocked hours to reflect only the time they spent on the telephone with customers.” (Id. at ¶¶ 18-19.) Defendant's Team Leaders purportedly “determined which time to remove from representatives' clocked hours based on measurements of their call times performed by IEX, the telephone application used by all representatives at [Defendant's] Farmington Hills, Michigan call center.” (Id. at ¶ 19.)

         Following this incident in September of 2015, Plaintiff and other Representatives submitted a grievance challenging Defendant's policy of reducing clocked hours to reflect only the time spent on phone calls with customers. (Id. at ¶ 20.) In response, Defendant's human resources office advised Plaintiff and her fellow Representatives that the company “would not pay us any additional compensation on account of the hours we claimed were improperly reduced from our clocked hours.” (Id.) Plaintiff believes that her “participation in this grievance led to [her] termination . . . several weeks later.” (Id. at ¶ 21.)

         Plaintiff states that “[a]t all relevant times, there were approximately 300-400 other hourly-paid representatives employed by [Defendant] at its Farmington Hills, Michigan call center, ” and that she “worked in the same office concourse” as approximately 50 to 150 of these Representatives. (Id. at ¶ 6.) All of the Representatives who worked at the Farmington Hills call center “had the primary duty of answering telephone calls regarding billing and other account activity from customers of [Defendant's] clients, ” and Plaintiff believes, based on her discussions with and observations of her fellow Representatives as they performed their jobs, that she and these co-workers were subject to common policies and procedures regarding (i) compensation only for time spent on phone calls with customers, and (ii) refusal to pay for pre-shift duties such as logging into computer systems and waiting for applications to load. (Id. at ¶¶ 7, 9, 13-16, 19.)

         As noted, Plaintiff's motion also is supported by the declaration of a second individual, Alicia Currie, who “was employed by [Defendant] as a call center representative from approximately June 2012 to November 2015.” (Plaintiff's Motion, Ex. 4, Currie Decl. at ¶ 2.) Ms. Currie states that she, like Plaintiff, worked at Defendant's Farmington Hills facility, ...


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