Anderson v. The Minacs Group (USA), Inc.

Filing 22

OPINION and ORDER granting 11 Plaintiffs Pre-Discovery Motion for Conditional Certification and Court-Supervised Notice Pursuant to 29 U.S.C. § 216(b) of the Fair Labor Standards Act. Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BRENDA ANDERSON, individually and on
behalf of others similarly situated,

Case No. 16-13942
Honorable Nancy G. Edmunds

Plaintiff,
v.
THE MINACS GROUP (USA) INC.,
Defendant.
/

OPINION AND ORDER GRANTING PLAINTIFF’S PRE-DISCOVERY
MOTION FOR CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [11]
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.
1

The Minacs Group evidently was acquired by SYNNEX Corporation in August of
2016, and has been integrated into SYNNEX’s Concentrix business segment.
Nonetheless, the parties continue to refer to The Minacs Group as the defendant in this
case, and the Court will do likewise in this opinion.
2

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.)

2

In its response to Plaintiff’s motion, Defendant asserts (without citation to the record)
that Mr. Van worked at a different call center and was assigned to a different campaign
than Ms. Anderson, Ms. Currie, and Ms. Page.
3

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
4

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
5

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 ¶
6

2.) Ms. Currie states that she, like Plaintiff, worked at Defendant’s Farmington Hills facility,
and that she was paid $10.50 per hour at the time she left Defendant’s employ. (Id. at ¶¶
2-3.)
The statements in Ms. Currie’s declaration largely reiterate the facts attested to by
Plaintiff. Ms. Currie’s primary duty was answering telephone calls, and she states that she
was subject to Defendant’s “common policy of only paying its representatives for the time
they spent engaging in telephone calls” with customers of Defendant’s clients. (Id. at ¶¶
7-9.) As a result, Ms. Currie asserts that she was not compensated for the time spent (i)
at the beginning of her shift logging into Defendant’s computer systems and waiting for the
required computer applications to open and load, and (ii) on 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 ¶¶ 10-11, 15, 17.) Ms. Currie,
like Plaintiff, states that “on many occasions, [she] followed [Defendant’s] protocol for
requesting to be paid for pre-shift time, but [her] requests were ignored.” (Id. at ¶ 15.)
Ms. Currie also challenged Defendant’s policy of only paying its Representatives for
time spent engaged in telephone calls with customers, as well as the practice of Team
Leaders “to manually reduce representatives’ clocked hours to reflect only” this time spent
on the phone with customers. (Id. at ¶¶ 19-21.) In response, Ms. Currie was advised by
one of Defendant’s Team Managers, Stanetta Jones, “that in order to control the labor
budget and motivate representatives to complete more calls, [Defendant] maintained a
policy of only paying representatives for time spent engaged in telephone calls with
customers.” (Id. at ¶ 21.) Ms. Currie joined Plaintiff and other Representatives in filing a
7

grievance against this policy, but Defendant’s human resources office advised Ms. Currie
and the other grievants that no additional compensation would be paid to them “on account
of the hours [they] claimed were improperly reduced from [their] clocked hours.” (Id. at ¶
22.)
C. Defendant’s Declaration in Opposition to Plaintiff’s Motion
Defendant’s response in opposition to Plaintiff’s motion is accompanied by the
declaration of Stanetta Jones, who currently works as an Operations Manager with
supervisory responsibility over multiple campaigns conducted out of Defendant’s
Farmington Hills office. (Defendant’s Response, Ex. 1, Jones Decl. at ¶ 1.) Ms. Jones was
hired as a Team Leader in 2014, was then promoted in July of 2015 to Team Manager for
the Consumers Energy campaign, and more recently was promoted to her current position
of Operations Manager in July of 2016. (Id.) During the time Ms. Jones served as a Team
Manager, Plaintiff and Ms. Currie — as well as another individual, Terra Page, who has
given her written consent to join this suit as a plaintiff — were employed as call center
representatives for the Consumers Energy campaign.
According to Ms. Jones, while “[t]he primary duty of a Representative is to answer
customer telephone calls,” these employees carry out other, related tasks such as “entering
account notes and filling out necessary forms,” and the time spent on all such work tasks
and work related activities “is tracked and compensated.” (Id. at ¶ 7.) In particular, Ms.
Jones states that once a Representative is logged into the Web Powered Access (“WPA”)
application at the beginning of her shift, this employee is “on the clock” and will be paid for
her time on the job until she logs out of the WPA system for a break or lunch period or at
the end of her shift. (Id. at ¶¶ 9-11.) For Representatives who work on the Consumers
8

Energy campaign, Team Leaders are responsible for manually entering

the WPA

timestamp information into the IEX timekeeping system at the end of each shift, but
Representatives “receive an electronic alert if the IEX data entered by the Team Leader
differs from the WPA timestamp data,” and this allows Representatives the opportunity to
“challenge any data entry issues” concerning the time for which they will be compensated.
(Id. at ¶¶ 12-13.)3 In addition, Team Leaders have the ability to enter “various pay codes”
into the IEX system so that Representatives may be “compensated for time they are not
logged into WPA,” including such circumstances as “coaching sessions” and
“troubleshoot[ing] system downtime.” (Id. at ¶ 14.)
Ms. Jones asserts that the total amount of time it takes to “get[] from the production
floor door” to a workstation and then to log into the WPA system is “from 1 minute 15
seconds to 1 minute 50 seconds.” (Id. at ¶ 9.) She further states that “[i]f the process
takes longer due to computer or systems problems[,] the Representatives are trained to
inform their Team Leader, who adjusts their time and therefore their pay to reflect the
additional time spent logging in.” (Id.)

II.

ANALYSIS
A. The Law Governing Plaintiff’s Motion
Through the present motion, Plaintiff requests that the Court conditionally certify this

suit as a collective action under the FLSA. The pertinent FLSA provision states as follows:

3

Ms. Jones states that this manual data entry process is “specific to” the Consumers
Energy campaign and “is not necessarily the process” used with other campaigns. (Id.
at ¶ 12.)
9

An action . . . may be maintained against any employer . . . in any Federal or
State court of competent jurisdiction by any one or more employees for and in
behalf of himself or themselves and other employees similarly situated. No
employee shall be a party plaintiff to any such action unless he gives his consent
in writing to become such a party and such consent is filed in the court in which
such action is brought.
29 U.S.C. § 216(b). As the Sixth Circuit has observed, the type of suit authorized under
this provision is termed a “collective action,” and an individual must “opt into” the suit in
order to be joined as a party plaintiff. Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546
(6th Cir. 2006). The opt-in nature of an FLSA collective action is thus “distinguished from
the opt-out approach utilized in class actions under Fed. R. Civ. P. 23.” Comer, 454 F.3d
at 546.
This Court has previously elucidated the standards that govern the decision whether
to conditionally certify a suit as an FLSA collective action:
Section 206(b) establishes two requirements for a representative action
brought by employees in their own behalf and for similarly situated persons.
First, the plaintiffs must actually be similarly situated, and second, all plaintiffs
must signal in writing their affirmative consent to participate in the action.
Accordingly, the district court’s task is to first consider whether plaintiffs have
shown that the employees to be notified of the collective action are, in fact,
similarly situated. If the plaintiffs meet this burden, then the district court may
use its discretion to authorize notification of similarly situated employees to allow
them to opt into the lawsuit.
Although the phrase “similarly situated” is undefined, the Sixth Circuit has
recognized that district courts typically follow a two-stage certification process
to determine whether the opt-in plaintiffs and lead plaintiffs are similarly situated.
The first stage of § 216(b) certification, also known as the “notice stage,” takes
place early in the litigation; i.e., at the beginning of discovery. It is here where
the court determines whether the suit should be conditionally certified as a
collective action so that potential opt-in plaintiffs can be notified of the suit’s
existence and of their right to participate. The second stage occurs much later;
after all of the opt-in forms have been received and discovery has been
concluded.
Fisher v. Michigan Bell Telephone Co., 665 F. Supp.2d 819, 824-25 (E.D. Mich. 2009)
10

(internal quotation marks, citations, and alterations omitted).
The present motion has been brought in the “notice” stage of this litigation, before the
parties have commenced any discovery efforts, and it seeks only conditional certification
of this suit as a collective action. In this stage, Plaintiff “bear[s] the burden of showing that
the opt-in plaintiffs are similarly situated to the lead plaintiff[].” Fisher, 665 F. Supp.2d at
825 (internal quotation marks and citation omitted). This standard is “less stringent” than
the showing demanded of a plaintiff who seeks class certification under Fed. R. Civ. P. 23,
and Plaintiff may meet this burden by establishing that her claim and the claims of the optin plaintiffs are “unified by common theories of [Defendant’s] statutory violations, even if the
proofs of those theories are inevitably individualized and distinct.” 665 F. Supp.2d at 825
(internal quotation marks and citations omitted).
Moreover, Plaintiff “must show only that h[er] position is similar, not identical, to the
positions held by the putative class members.” 665 F. Supp.2d at 825 (internal quotation
marks, alteration, and citation omitted). This is a “fairly lenient” standard, entailing a
“modest factual showing” that Plaintiff and the potential opt-in plaintiffs “together were
victims of a common policy or plan that violated the law.” 665 F. Supp.2d at 825 (internal
quotation marks and citations omitted). In analyzing the evidence put forward by the
parties, the Court “does not resolve factual disputes, decide substantive issues going to the
ultimate merits, or make credibility determinations.” 665 F. Supp.2d at 825 (internal
quotation marks and citation omitted).
B. Plaintiff Has Satisfied the Lenient Standard Governing Her Request for
Conditional Certification.
Against this legal backdrop, the Court turns to Plaintiff’s motion, which seeks
11

conditional certification of a class of “[a]ll current and former hourly customer service
representatives who worked for Defendant in its Farmington Hills, Michigan call center at
any time during the last three years.” (Plaintiff’s Motion, Br. in Support at 1.) In support of
this request, Plaintiff argues that the record at this preliminary stage of this litigation
sufficiently demonstrates that Plaintiff and her fellow Representatives at the Farmington
Hills call center were subjected to similar policies and procedures regarding their
compensation that (i) improperly disregarded some of their work-related activities in tallying
the number of hours they worked, and (ii) thereby resulted in denial of overtime pay to
which these employees were entitled under the FLSA. As discussed below, the Court
agrees.
First, the declarations of Plaintiff and another former Representative at Defendant’s
Farmington Hills facility, Alicia Currie, support the conclusion that Defendant operated
under policies and practices that failed to count the time spent on certain work-related
activities toward a Representative’s total hours worked. According to Plaintiff and Ms.
Currie, Representatives were compensated only for time spent on the telephone with
customers of Defendant’s clients. This policy, in Plaintiff’s view, unduly discounted two
types of work activities that should be included in a Representative’s compensated hours
spent at work. First, Plaintiff states that once she arrived at her workstation at the
beginning of her shift, “it took anywhere from 3-10 minutes on most days” to open and load
the computer applications needed for her to receive phone calls from customers.
(Anderson Decl. at ¶ 10.) Although Defendant ostensibly “maintained a formal policy . . .
of allowing representatives to submit requests to be paid for time spent waiting for
computer applications to load,” Plaintiff asserts that Defendant did not abide by this policy,
12

and that her requests “to be paid for pre-shift time[] . . . were ignored.” (Id. at ¶ 15.)4
Next, Plaintiff and Ms. Currie have identified a number of seemingly necessary work
activities for which they were not compensated, due to Defendant’s purported practice of
paying its Representatives only for time spent on the phone with customers. Specifically,
Plaintiff cites the time she spent “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” as excluded from Defendant’s calculation of her pay. (Anderson Decl.
at ¶ 17.) When Plaintiff inquired about this, her Team Leader, Tiara Milton, told her that
“she had reduced [Plaintiff’s] clocked hours to reflect only the time [she] spent engaged in
telephone calls with customers,” and Milton further explained that “she was required to alter
[Plaintiff’s] time in this manner due to [Defendant’s] corporate policy.” (Id. at ¶ 18.)5
This record suffices to make the requisite “modest factual showing” that Plaintiff and
other potential opt-in plaintiffs “together were victims of a common policy or plan that
violated the law.” Fisher, 665 F. Supp.2d at 825 (internal quotation marks and citations
omitted). As this Court observed in Fisher — a suit which, like this one, was brought by call
center employees — a number of district courts have “granted conditional certification to

4

Ms. Currie’s declaration includes essentially the same assertions regarding
Defendant’s failure to compensate her for the time spent waiting for computer
applications to load and its failure to act upon her requests that she be paid for this preshift time. (See Currie Decl. at ¶¶ 10, 15.)
5

Again, Ms. Currie also states that she was not paid for time spent on various work
tasks other than speaking on the phone with customers, and that she was told by her
supervisors that this practice was attributable to Defendant’s corporate policy. (See
Currie Decl. at ¶¶ 17, 19-21.)
13

call center employees alleging similar ‘off-the-clock’ FLSA violations.” 665 F. Supp.2d at
826 (citing cases). Likewise, Plaintiff has identified still more cases “around the nation” in
which district courts have conditionally certified collective actions brought by call center
employees. (Plaintiff’s Motion, Br. in Support at 18 (collecting cases).) And in Fisher itself,
of course, this Court found that conditional certification was warranted based on evidence
that the defendant did not compensate the plaintiff call center employees for (i) pre-shift
time spent logging into their computers and loading software applications, (ii) work-related
tasks other than taking calls from customers that were dictated by the defendant’s
expectations and quotas for employee performance, and (iii) time spent on calls that were
still ongoing at the end of an employee’s shift. See Fisher, 665 F. Supp.2d at 823, 826.
Plaintiff here has produced two of these three categories of evidence, and the Court finds
that this evidence is sufficient to satisfy the fairly lenient standard that governs prediscovery conditional certification of a collective action.
Defendant suggests three grounds for avoiding this result, but none is persuasive.
First, Defendant contends that the allegations and evidence produced by Plaintiff are
insufficient to satisfy even Plaintiff’s modest burden to show that she and the proposed
class of Representatives employed at Defendant’s Farmington Hills call center are similarly
situated. Rather, Defendant asserts that the Representatives in this putative class differ
from one another in two respects: (i) they are trained to use different computer operating
systems and applications that are specific to the campaigns to which they are assigned,
and thus “cannot simply be transferred from campaign to campaign without extensive
training,” and (ii) they are paid in accordance with systems and processes that “vary by
campaign.” (Defendant’s Response Br. at 8-9.)
14

This challenge to Plaintiff’s showing of similarly situated call center employees suffers
from two deficiencies. First, even accepting that the Representatives at Defendant’s
Farmington Hills call center undergo training specific to their campaigns and cannot readily
be reassigned from one campaign to another, any such differences among Representatives
with respect to their training, knowledge, or skills have no bearing on the pertinent question
here — namely, whether these employees were subject to common policies or practices
concerning their compensation, such that they all were victims of the same alleged FLSA
violations arising from these common policies or practices. As for Defendant’s claim of
compensation processes or practices that differ from one campaign to another, the record
fails to disclose any meaningful differences that would undercut Plaintiff’s evidence of a
more uniform compensation scheme. Instead, Defendant has produced only the statement
of an Operations Manager, Stanetta Jones, that the process used to pay Representatives
who work in the Consumers Energy campaign is “specific to this campaign and is not
necessarily the process for other campaigns.” (Jones Decl. at ¶ 12 (emphasis added).)
Ms. Jones does not elaborate on this assertion,6 and nothing in her declaration, or
elsewhere in the record, identifies particular features of the compensation schemes used
in different campaigns that would undercut Plaintiff’s evidence of common policies and
practices that affect the pay of all Representatives employed at Defendant’s Farmington
Hills call center.

6

Thus, while Defendant contends in its response brief that Team Leaders in the
Consumers Energy campaign “manually enter WPA data into IEX” but the systems used
in other campaigns “automatically upload time stamp data into IEX,” (Defendant’s
Response Br. at 9), Defendant does not cite anything in the present record that would
support this assertion.
15

Defendant next insists, however, that the evidence produced by Plaintiff fails to
establish that any alleged shortfalls in the compensation paid to Plaintiff and other
Representatives at the Farmington Hills facility are attributable to Defendant’s common
policies and payroll processes, as opposed to the practices of individual supervisors and
employees. Defendant claims, for example, that it has “standard FLSA compliant policies”
in place for its Consumers Energy campaign that required Plaintiff “to report
uncompensated time to [her] Team Leader” in order to trigger payment for this time, but it
states that there is “no evidence” that Plaintiff availed herself of this process. (Defendant’s
Response Br. at 9.) Defendant further notes that Plaintiff and the other individuals who
have given their written consent to join this suit “reported to . . . different Team Leaders,”
which suggests the possibility that one or more of these Team Leaders might have deviated
from Defendant’s written policy in reducing the work hours of the Representatives they
supervised. (Id. at 10.)

These individualized inquiries, in Defendant’s view, defeat

Plaintiff’s showing that she and the other Representatives at Defendant’s Farmington Hills
call center are similarly situated.
These challenges once again run afoul of the limited record presently before the
Court. Contrary to Defendant’s contention, both Plaintiff and Ms. Currie expressly state in
their declarations that they complained to their Team Leaders about work activities for
which they were not being paid, but that their Team Leaders responded that these activities
had to be deducted from their hours worked as a matter of “[Defendant’s] corporate policy.”
(Anderson Decl. at ¶ 18; see also Currie Decl. at ¶¶ 19-21.)7 Similarly, as to Defendant’s

7

Indeed, Ms. Currie states that she raised this issue not only with her Team Leader
but also with Ms. Jones, who told her that Defendant “maintained a policy of only paying
16

suggestion that each of the individual Team Leaders who supervised Plaintiff and the other
potential class members might have deviated from Defendant’s written policies in different
ways, Plaintiff has produced evidence that she and Ms. Currie both were told by their Team
Leaders that the complained-of reductions in their hours worked were a product of a
corporate policy, and not the individual decisions of these supervisors. (See Anderson
Decl. at ¶ 18; Currie Decl. at ¶¶ 19-21.) To the extent that the record on this point is
contested and remains open to exploration upon the commencement of discovery, the
Court already has explained that it “does not resolve factual disputes” in analyzing a prediscovery request for conditional certification of an FLSA collective action. Fisher, 665 F.
Supp.2d at 825 (internal quotation marks and citation omitted); see also Wlotkowski v.
Michigan Bell Telephone Co., 267 F.R.D. 213, 219 (E.D. Mich. 2010) (explaining that a
defendant’s evidence refuting a plaintiff’s showing of similarly situated employees is more
properly “addressed at the second stage” of the § 216(b) certification process).
Finally, Defendant argues that the modest record submitted by Plaintiff in support of
her motion is inadequate to establish that Plaintiff and the other Representatives employed
at Defendant’s Farmington Hills call center were subject to a “common policy or plan that
violated the law,” Fisher, 665 F. Supp.2d at 825 (internal quotation marks and citations
omitted), particularly where it is questionable whether Plaintiff and her fellow declarant, Ms.
Currie, have personal knowledge about Defendant’s corporate policies and practices
governing employee compensation. The Court rejected this same challenge in Fisher,
however, explaining that the declarants in that case had sufficiently “aver[red] that their

representatives for time spent engaged in telephone calls with customers.” (Currie
Decl. at ¶ 21.)
17

supervisors were aware of Defendant’s alleged illegal practices.” 665 F. Supp.2d at 826.
Likewise, Plaintiff and Ms. Currie expressly state in their declarations that they learned of
Defendant’s allegedly unlawful corporate policies as a direct result of discussions with their
supervisors, in which they were told that their work hours were reduced pursuant to
Defendant’s policy that Representatives should be paid only for time spent in telephone
calls with customers. (See Anderson Decl. at ¶ 18; Currie Decl. at ¶¶ 19-21.)
Plaintiff and Ms. Currie further state that in their discussions with and observations of
other Representatives at the Farmington Hills facility, they learned that some of these fellow
employees (i) also had been instructed to arrive at work 15 minutes before the start of their
scheduled shifts so that they could log into their computers and load the necessary
computer applications before their shifts began, (ii) also had asked to be paid for these preshift activities but had received no response to these requests, and (iii) also had been
advised of Defendant’s corporate policy that Representatives were paid only for the time
they spent on the telephone with customers. (See Anderson Decl. at ¶¶ 13, 16, 19; Currie
Decl. at ¶¶ 13, 16.) To the extent that Defendant contends that these statements should
be discounted as containing hearsay or as lacking a sufficient basis in the personal
knowledge of the two declarants, this Court recognized in Fisher that a plaintiff’s evidence
in support of a pre-discovery motion for conditional certification need not “meet the same
evidentiary standards applicable to motions for summary judgment[,] because to require
more at this stage of the litigation would defeat the purpose of the two-stage analysis under
Section 216(b).” 665 F. Supp.2d at 826 (internal quotation marks and citation omitted).
To be sure, the lead plaintiffs in Fisher submitted the “declarations of 67 opt-ins,” and
also “provided the deposition testimony of eight opt-ins supporting their claim that they are
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all victims of a common policy or plan . . . that violates the FLSA. 667 F. Supp.2d at 826.
Here, in contrast, Plaintiff offers only her own declaration and that of one other opt-in
plaintiff, Ms. Currie, and she has identified only two other individuals who have given their
written consent to be joined as plaintiffs. Nonetheless, as explained by another court in this
District, “the Sixth Circuit has never required evidence that others will opt in before the
[conditional] certification decision can be made,” and there is no threshold number of coworker declarations that a plaintiff must provide in order to make the requisite modest
factual showing of similarly situated employees who are subject to a common policy or
plan. Shipes v. Amurcon Corp., No. 10-14943, 2012 WL 995362, at *8-*9 (E.D. Mich.
March 23, 2012); see also Myers v. Marietta Memorial Hospital, 201 F. Supp.3d 884, 892
(S.D. Ohio 2016). While the record here is not overwhelming, the Court finds it sufficient
to meet the fairly lenient standard for demonstrating, in the pre-discovery phase of this
case, that Plaintiff and other similarly-situated Representatives employed at Defendant’s
Farmington Hills call center were deprived of compensation mandated under the FLSA as
a result of common corporate policies and procedures adopted by Defendant.
C. The Notice Proposed by Plaintiff Is Appropriate, But This Notice Should Be
Sent Only by Ordinary and Electronic Mail and Not by Text Message.
Plaintiff’s motion is accompanied by a proposed notice that she wishes to send to
each member of the proposed plaintiff class, and she requests authorization to distribute
this notice by ordinary mail, electronic mail, and text message. In response, Defendant
contends that the proposed notice should be sent only by ordinary mail, and it also argues
(i) that it should be ordered to provide a more limited set of information in response to
Plaintiff’s request that it identify the members of the proposed class, (ii) that Plaintiff’s
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notice should more specifically identify the start and end dates of the period during which
prospective class members must have worked at Defendant’s Farmington Hills call center,
and (iii) that conditional certification should be limited to only those Representatives who
worked on the Consumers Energy campaign. The Court already has addressed (and
rejected) the last of these contentions in its discussion of Plaintiff’s showing of similarly
situated employees. As to Defendant’s remaining arguments, the Court agrees that notice
via text message is not appropriate and that the class period should be more specifically
delineated, but otherwise approves the notice proposed by Plaintiff.
As Defendant correctly observes, it must supply the telephone numbers of its current
and former employees in order to enable Plaintiff to serve her notice by text message, and
this is an unnecessary intrusion upon the privacy of these individuals. In addition, the Court
finds that the transmission of notice by text message could well be viewed by the recipients
as harassing in nature, and that a significant number of recipients are likely to disregard this
notice as “spam.” Accordingly, the Court concludes that notice by text message is not
appropriate. The Court does not agree, however, with Defendant’s further contention that
notice by electronic mail is unwarranted. As Plaintiff points out, such notice comports with
a trend toward greater use of e-mail (and corresponding less use of ordinary mail) for most
types of communications. It follows that Defendant should provide e-mail addresses for the
potential members of the plaintiff class, but that it need not provide telephone numbers.
As for Defendant’s contention that it should not have to provide dates of employment
or job titles for potential class members because this information is already “encompassed
in Plaintiff’s class description,” (Defendant’s Response Br. at 14), the Court does not agree
that this information is unnecessarily duplicative. Rather, the information requested by
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Plaintiff provides greater detail about the employment histories of the potential class
members, and this is likely to prove useful in subsequent stages of this litigation.
Finally, Defendant argues that the notice issued by Plaintiff should specifically identify
the start and end dates of the time period in which class members must have been
employed as Representatives at Defendant’s Farmington Hills facility.

As Plaintiff

recognizes, the appropriate period encompassed by her proposed collective action is “three
(3) years prior to the filing of the complaint.” (Plaintiff’s Reply Br. at 6.) The Court agrees
with Defendant that the proposed notice provided by Plaintiff is not sufficiently specific in
identifying this three-year period. In particular, where this notice refers to individuals
employed at Defendant’s Farmington Hills call center “at any time during the last three
years,” it should be amended to instead refer to individuals employed at this location “at any
time during the three-year period beginning on November 7, 2013 and ending on November
7, 2016.”
III.

CONCLUSION
For these reasons,
The Court hereby GRANTS Plaintiff’s December 30, 2016 motion for conditional

certification and court-ordered notice (Dkt. 11), except to the limited extent that the Court
has instructed Plaintiff to amend her proposed notice and to issue this notice by ordinary
and electronic mail only.
SO ORDERED.

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
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Dated: May 9, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of record
on May 9, 2017, by electronic and/or ordinary mail.
s/Carol J. Bethel
Case Manager

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