Salley v. ABC Financial Services Inc
ORDER: The Court notes and appreciates the 18 joint status report. The Court will extend the discovery and motions deadlines by approximately one month so the parties can respond to this Order. Discovery is extended to 9/5/2017 and Motions due by 9 /29/2017. The 11 Motion for conditional certification is denied without prejudice to another one - if she can provide some confirming evidence of a widespread situation that affected many ABC employees. If Sally renews her request for a group action, she should file a pointed supplemental motion. ABC would likewise file a pointed supplemental response. The Court will consider the many papers filed the first time around. Signed by Judge D. P. Marshall Jr. on 8/8/2017. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
RACHEL SALLEY, Individually and on
Behalf of All Others Similarly Situated
ABC FINANCIAL SERVICES INC.
1. ABC Financial Services Inc.' s policy requires that tech support
employees must be available in the interactive client software when they clock
in. Ng 16-1 at 18. Salley says that, when she worked there, it took her between
ten and fifteen minutes to get her computer and the necessary software started.
A co-worker told her not to clock in before booting up. So Salley wasn't paid
for this pre-shift time. She says her co-workers weren't paid for this time
either: "Other Tech Support Employees for Defendant I spoke with expressed
to me their dissatisfaction with Defendant's pay policies and practices that
required us to start up our computers and software prior to clocking in." NQ
11-7 at ,-r 20. And Salley believes "others would join this suit if given the
opportunity." Ng 11-7 at ,-r 21. There are no affidavits from other employees
or former employees. No one has indicated a desire to join the case. ABC says
it has no policy requiring employees to shut down their computers at the end
of a shift, and encourages the opposite. Salley doesn't say how often she or coworkers had to boot up their computers. Wasitonceina while? Several times
every week? If this case is about employees' having to occasionally respond
without pay to a co-worker's carelessness, it is one thing; if re-boots were
routine and widespread, then not getting paid for the time required to get
started is another thing.
2. The current record leaves the Court with too many questions. The
Court can't consider what Salley says her co-workers said. Johnson v. Frac Tech
Services, Limited, 4:09-cv-739-DPM, Ng 96 at 7 (E.D. Ark. 3 Sept. 2010). Without
more proof of group-wide effect, some proof that having to boot up without
pay occurred more than sporadically, and a firmer expression of interest from
others in joining, this seems like a Salley/ ABC dispute, not a collective action.
Salley' s burden at this point is light, but she hasn't carried it. Freeman v. Wal-
Mart Stores, Inc., 256 F. Supp. 2d 941, 944-45 (W.D. Ark. 2003). There's not
enough here for the Court to conclude that an ABC policy, or some
combination of policy and circumstances, affected a similarly situated group.
3. The Court notes and appreciates the joint status report, Ng 18. The
discovery deadline was two weeks ago, and the parties have proposed
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extending it. NQ 18. The Court applauds the parties' cooperation; but no
explanation is given about why the eleven months already provided was
inadequate for Salley-specific and certification-related discovery;
embedded request for three more months is therefore denied. The Court will
extend the discovery and motions deadlines by approximately one month so
the parties can respond to this Order. Discovery extended to 5 September
2017. Motions due 29 September 2017.
Salley's motion for conditional certification, NQ 11, is denied without
prejudice to another one - if she can provide some confirming evidence of a
widespread situation that affected many ABC employees. If Salley renews her
request for a group action, she need not start from scratch. Instead, she should
file a pointed supplemental motion. ABC should likewise file a pointed
supplemental response. The Court will consider the many papers filed the
first time around.
D.P. Marshall Jr.
United States District Judge
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