Authored by Loren Gesinsky
On January 20, 2012, Magistrate Judge Paul E. Davison of the Southern District of New York recommended decertifying the off-the-clock FLSA claims of 40 current and former IBM call-center representatives in Seward v. IBM. While noting “the scarcity of cases within the Second Circuit” addressing this type of motion, he relied heavily on Zivali v. AT&T Mobility, in which Judge Jed S. Rakoff of the same Court, eight months earlier, decertified off-the-clock claims of over 4,100 retail-store employees.
As the sole named plaintiff, Seward failed to meet his burden of proving he was similarly situated to the 39 opt-in plaintiffs in relation to the three key factors identified in Zivali:
- common or disparate factual and employment settings of the individual plaintiffs;
- defenses available which appear common to all plaintiffs or individual to each plaintiff; and
- fairness and procedural considerations.
For the first factor, the Court found that IBM’s timekeeping system and overtime policies were legal because, although time entries were pre-populated electronically, plaintiffs could add — and some opt-in plaintiffs were directed by their supervisors to add — boot-up time outside regular hours. The Court also found that “the many differences in specific job duties, team functions and structures, managerial expectations, and individual experiences and understandings among the plaintiffs” prevented Seward from proving a sufficiently uniform and pervasive policy requiring him and all the opt-in plaintiffs to engage in system-boot-up activities off the clock. For example:
- answering incoming calls was not the primary function of many opt-in plaintiffs;
- 27 opt-in plaintiffs worked for at least one manager who did not expect or require pre-shift work;
- several managers organized their teams’ schedules into staggered, overlapping shifts so that there would always be phone coverage, even at the start of a particular opt-in’s shift;
- some opt-ins arrived at the office early for personal reasons and then engaged in personal activities (eating, drinking, socializing, browsing the internet, etc.) rather than boot-up activities;
- badge-swipe data regarding office entry indicated that 2 opt-ins did not arrive early enough to engage in booting-up activities prior to their shifts; and
- 1 opt-in’s shift started an hour before telephone lines were even open.
The same facts supported IBM’s claim that its defenses will be individualized. These defenses will depend on evidence rife with disparities regarding whether pre-shift work was necessary or expected, whether plaintiffs actually engaged in such work (and, if so, how much time they spent booting up), and whether managers knew or should have know that plaintiffs were engaging in this work. Other than actual boot-up time, all of this evidence relates to liability and therefore could not be resolved simply by bifurcation.
The Court then stated that the third-factor determination of fairness and procedural questions “appears largely to depend on the Court’s analysis under the first two factors of the test.” While recognizing that representative testimony might be appropriate on some issues such as management requirements or the functions of different teams, the Court found that such testimony would be inappropriate on the rest of the factual issues, thus making continued certification through trial unwieldy and unfair.
Additionally, the Court recommended full rather than partial decertification, in part because neither party requested partial decertification and IBM specifically objected to it during oral argument.
The parties have 14 days from service of the Report and Recommendation to serve and file objections with District Judge Vincent L. Briccetti. We intend to report on the resolution of any such objections and other developments of note in this case.