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