Authored by Brian P. Long
A seemingly never ending wave of call center class actions has been leveled against employers in recent years. The hallmark of these suits invariably includes allegations of purportedly homogenous “drones” working off-the-clock when they are not helping customers. Companies are left with few options other than shout into the wind that their policies prohibit such uncompensated work by their varied customer focused workforce. Unfortunately, too frequently, courts are deaf to the employer’s concerns and certify collective and class actions with little regard to whether the named plaintiffs are “typical,” “adequate,” or even whether there is evidence of common issues among the putative class, other than the well-worn self-serving theories common to each of these suits. Often enough, with little chance of legitimate policies and genuine differences among their workers carrying the day, companies are forced into expense settlements.
But there is hope, and the waters may be receding. Bucking the trend, a Maryland federal judge just denied certification of two related putative class action lawsuits brought against Comcast Cable Communications Management, LLC on behalf of Customer Account Executives (“CAEs”) working at two separate locations in Maryland. CAEs, like most call center employees, provide service and support over the phone to Comcast’s current and prospective customers. Predictably, the main theory of liability in these cases hinged entirely on an unsupported theory: CAEs needed to perform various tasks including booting up their computers, opening software applications, and reviewing company e-mails off-the-clock so that they would be ready to take calls from customers at the start of their shifts.
Rather than submit and settle following the conditional certification of an FLSA collective action, Comcast kept fighting. As it turns out, for good reason. One of the named plaintiffs worked in a position where he did not actually take inbound calls from customers. The Court found this difference critical: “Thus, plaintiffs’ whole theory of CAEs needing to log in and be ready to receive telephone calls as soon as their shift begins would not be applicable to Faust in the same way as other CAEs.” But the differences among the purported drones and named plaintiffs did not end there. A separate named plaintiff only worked 30 hours per week and, thus, would not be due additional overtime even if his allegations were true. Once again, the Court correctly found that the plaintiffs’ claims failed to meet even the threshold issue of typicality. Also, the named plaintiffs abandoned related unpaid meal period and off-the-clock post-shift claims without explanation. The lack of explanation led the Court to conclude that the named plaintiffs were not adequate representatives of the putative class.
Importantly, the Court did not stop its analysis with typicality and adequacy. Rather than simply accept as true the plaintiffs’ unsupported theory that every CAEs’ claims were the same, the Court held that class-wide issues do not predominate. In doing so, the Court noted that off-the-clock claims typical to call center actions raise at least four distinct questions: (1) did the employee work overtime?; (2) was the employee paid for that work?; (3) if the employee was not paid, did the employer know, or should it have known that the overtime was worked?; and (4) was the amount of time de minimis?
In addressing these questions, the Court noted that Comcast maintained strict policies forbidding off-the-clock work, and it was not enough for plaintiffs to simply allege employees worked off-the-clock under a recycled theory of liability. Instead, plaintiffs actually need evidence that Comcast “had some unofficial policy or practice of permitting CAEs to act in contravention of that official policy . . .this unofficial policy must be capable of being demonstrated on a class-wide basis.” The Court rejected plaintiffs’ contention that once a CAE logged into their computer, Comcast was required to pay them for a continuous workday, noting that several CAEs testified that they would log-in and then get coffee, review personal e-mails, or perform other personal tasks. Whether the time between the initial log in and the start of the CAE’s shift was actually compensable required an inherently individualized inquiry. In short, the CAEs are not homogenous drones, but individuals with unique habits and defenses. Further, the Court noted that uncompensated time under 10 minutes may be de minimis. As the amount of alleged off-the-clock time worked by CAEs could not be shown by simple reference to the log-in times, there was no way of determining liability on a class-wide basis. Because Plaintiffs could not show CAEs worked off-the-clock under some nonexistent unofficial policy (let alone the amount of alleged unpaid time), the Court held that the CAEs’ claims were not subject to common proof and certification was inappropriate. Comcast was heard.
Not stopping there, the Court also took issue with declarations submitted by the plaintiffs’ attorneys purportedly summarizing putative class data that would warrant class treatment. Rather than retain an expert statistician, the plaintiffs’ attorneys instead took it upon themselves to conduct an analysis of the CAEs’ computer log-in times. The plaintiffs also submitted an “irrelevant” expert report from another class action pending in a different state. The Court rejected this approach, as it rejected the unsupported theory of liability, and struck each of the declarations.
The decisions in these cases may signal a sea change. Companies facing similar suits are not destined to settle simply because mere allegations of a common practice of off-the-clock work are leveled against them. Lawful policies and legitimate variations between putative class members are not only relevant, but may carry the day.