Fry v. Accent Marketing Services L.L.C.

Filing 43

MEMORANDUM AND ORDER re: 36 MOTION to Certify Class Collectively filed by Plaintiff Roy Fry. Accordingly, IT IS HEREBY ORDERED that plaintiffs' motion for order conditionally certifying collective action [#36] is granted, and the C ourt conditionally certifies a class of all current and former non-exempt employees of defendant Accent Marketing Services L.L.C. at its Farmington, Missouri call center who were required to perform tasks such as booting up and shutting down their computers and logging in and out of various programs without pay during their unpaid meal periods and before and after their scheduled shifts, for a period of three (3) years from the date of this Order. IT IS FURTHER ORDERED that defendant shall pr ovide plaintiff's attorneys with the names, employment dates, and last known addresses of all potential class members within 14 days of the date of this Order. IT IS FURTHER ORDERED that the parties shall file a joint proposed form of notice fo r the Courts consideration, consistent with this Order, within 20 days of the date of this Order. If the parties cannot agree on a joint proposed form of notice after good faith efforts, then the parties shall file their own proposed forms of notice, each with a brief memorandum setting out the areas of disagreement and support for their position, for the Courts consideration. Signed by District Judge Catherine D. Perry on August 13, 2013. (MCB)

Fry v. Accent Marketing Services L.L.C.

Doc. 43

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROY FRY, individually and on
)
behalf of all others similarly situated, )
)
Plaintiff,
)
)
vs.
)
)
ACCENT MARKETING SERVICES,)
L.L.C.,
)
)
Defendant.
)

Case No. 4:13CV59 CDP

MEMORANDUM AND ORDER
Plaintiff was a customer service representative at defendant’s call center in
Farmington, Missouri. Plaintiff alleges that he and other similarly situated
employees were required to perform work duties before and after their shifts
without being paid. Plaintiff alleges that defendant improperly calculated
compensation in other ways, too, like failing to include non-discretionary bonus
pay when determining overtime compensation and requiring employees to round
their clock-in/clock-out times to the nearest quarter hour. Plaintiff brings a
collective action for unpaid compensation under the Fair Labor Standards Act
(FLSA), 29 U.S.C. § 201, et seq., on behalf of himself and others similarly

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situated.1 Plaintiff now moves for conditional certification of this case as a
collective action under FLSA so that he may notify certain of defendant’s past and
present employees of this action and provide them the opportunity to “opt in” as
plaintiffs to this litigation.2 Defendant opposes conditional certification on
various grounds. I will grant plaintiff’s motion for the reasons that follow.
Background
Defendant operates a call center in Farmington, Missouri. Fry worked there
as a customer service representative. He was paid as an hourly non-exempt
employee and was entitled to receive overtime compensation. To handle telephone
calls, Fry and other customer service representatives were required to log in and
use a computer system, open numerous computer programs, and read company
emails before the start of their shift. Plaintiff also alleges that he and other
customer service representatives were required to clock out during their lunch
break, which required them to return from lunch about five minutes early to log
back onto the system. Plaintiff further claims that, at the end of a shift, he and the

1

Plaintiff also seeks to certify a class action under Federal Rule of Civil Procedure 23 for
state law statutory claims under the Missouri Minimum Wage Law (MMWL), Mo. Rev. Stat. §
290.500 et seq., as well as for common law claims of quantum meruit, unjust enrichment, and
breach of contract, but these claims are not the subject of the instant motion.
2

Four other Accent employees have already filed consents to join this action even though
it has not yet been certified as a collective action.
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other customer service representatives were required to perform work after
clocking out, including shutting down programs, logging out, and completing
paperwork.3 Plaintiff alleges that he and other customer service representatives
were not paid for the time it took them to perform these tasks. Plaintiff alleges that
his supervisors were aware of this extra work and instructed him and the other
customer service representatives that they needed to be ready to handle calls at the
start of their scheduled shifts. Plaintiff also alleges that he received nondiscretionary bonuses as a full-time employee and that these bonuses were not
calculated in his regular rate of pay, resulting in less overtime compensation.
With the instant motion, plaintiffs request an order granting conditional class
certification certifying this case as a collective action and authorizing plaintiffs to
send notice under § 216(b) of the FLSA to “all non-exempt employees who were
required to perform tasks such as booting up and shutting down their computers
and logging in and out of various programs without pay during their unpaid meal
periods and before and after their scheduled shifts at the Farmington call center”
for a three year period. Plaintiff also seeks an order requiring defendant to provide

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Sometimes, plaintiff was also stuck on the phone with a customer at the end of his shift
and could not log out on time. In those situations, plaintiff alleges that he was not paid until he
had been on the phone for at least five minutes after his shift ended. In support of this motion,
two other potential class members filed affidavits mirroring plaintiff’s allegations, including this
one.
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them with the name, last known address, social security number, telephone
number, and dates of employment for each such employee and to conspicuously
post notice of this case at the call center.4
Discussion
Section 7 of the Fair Labor Standards Act mandates that an employer may
not subject non-exempt employees to a work week in excess of 40 hours unless the
employee is compensated for her overtime with additional pay of at least one and
one half times her regular hourly wage. 29 U.S.C. § 207. The Act also provides
that any employer who violates this restriction “shall be liable to the employee or
employees affected in the amount of their . . . unpaid overtime compensation . . .
and in an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b).
An action to recover the overtime and liquidated damages may be
maintained “by any one or more employees for and on behalf of himself or
themselves and other employees similarly situated.” Id. The FLSA does not define
the term “similarly situated.”5 Although the Eighth Circuit Court of Appeals has

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Plaintiff and his counsel also seek to be named as class representative and class counsel,
but they point to no authority which would require such appointment for collective actions. This
issue will presumably be raised when plaintiff seeks to certify a class under Fed. R. Civ. P. 23.
5

A 216(b) collective action differs from class actions brought under Rule 23 of the Federal
Rules of Civil Procedure. Davis v. Novastar Mortgage, Inc., 408 F. Supp. 2d 811, 814-15 (W.D.
Mo. 2005). A primary distinction is that under FLSA a similarly situated employee must “opt-in”
to the collective action to be bound by it, whereas under Rule 23, a similarly situated employee
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not decided the standard to determine whether potential opt-in plaintiffs are
“similarly situated” under § 216(b), the district courts in this circuit use a two-step
analysis. See e.g., Simmons v. Enterprise Holdings, Inc., 2011 WL 855669, *2
(E.D. Mo. Mar. 9, 2011); Littlefield v. Dealer Warranty Services, LLC, 679 F.
Supp. 2d 1014, 1016 (E.D. Mo. 2010); Parker v. Rowland Express, Inc., 492 F.
Supp. 2d 1159 (D. Minn. 2007); Davis v. Novastar Mortgage, Inc., 408 F. Supp.
2d 811 (W.D. Mo. 2005); Dietrich v. Liberty Square, L.L.C., 230 F.R.D. 574 (N.D.
Iowa 2005); McQuay v. American International Group, Inc., 2002 WL 31475212
(E.D. Ark. 2002).
As is typical under the two-step process, plaintiff has moved for conditional
certification for notice purposes at an early stage of the litigation. See Davis, 408
F. Supp. 2d at 815. At this first step in the process, I do not reach the merits of his
claims. Kautsch v. Premier Communications, 504 F. Supp. 2d 685, 688 (W.D. Mo.
2007); Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 262 (S.D.N.Y. 1997) (citation
omitted). Plaintiff’s burden at this stage is not onerous. See Kautsh, 504 F. Supp.
2d at 688; Smith v. Heartland Automotive Services, Inc., 404 F. Supp. 2d 1144,
1149 (D. Minn. 2005) (burden at first stage is “not rigorous”). Conditional

must “opt-out” to avoid being bound by the judgment. Id. See also Grayson v. K Mart Corp., 79
F.3d 1086, 1096 (11th Cir. 1996) (noting that the “similarly situated” standard is considerably less
stringent than Rule 23(b)(3) class action standards).
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certification at the notice stage requires “nothing more than substantial allegations
that the putative class members were together the victims of a single decision,
policy or plan.” Davis, 408 F. Supp. 2d at 815. “Plaintiffs need not show that
members of the conditionally certified class are actually similarly situated.” Fast v.
Applebee’s International, Inc., 2007 WL 1796205, *3 (W.D. Mo. June 19, 2007).
That determination is made during the second step of the process, after the close of
discovery. Id. “Determining whether such a collective action is the appropriate
means for prosecuting an action is in the Court’s discretion.” Heartland, 404 F.
Supp. 2d at 1149 (citation omitted). Once the Court conditionally certifies the
class, potential class members are given notice and the opportunity to “opt-in.”
Parker, 492 F. Supp. 2d at 1159.
At the second step of the process, the defendant may move to decertify the
class. See Dernovish v. AT&T Operations, Inc., 2010 WL 143692, *1 (W.D. Mo.
Jan. 12, 2010). This is typically done after the close of discovery when I have
more information and am able to make a factual determination as to whether the
members of the conditionally certified class are similarly situated. See Davis, 408
F. Supp. 2d at 815. To be similarly situated, however, “class members need not be
identically situated.” Fast, 2007 WL 1796205, *4 (W.D. Mo. June 19, 2007).
Having reviewed plaintiff’s motion in light of the relevant standards, I find
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that he has cleared the relatively low hurdle of demonstrating that conditional
certification of the collective action is appropriate. Plaintiff has come forward with
substantial allegations that he and the other members of the proposed collective
action were victims of a single decision, policy or plan to deprive them of
compensation, namely, that they were required to perform some work, including
but not limited to booting up their computers and logging into one or more
computer software programs, without getting paid for it. Although defendant has
presented evidence that clocking in and clocking out procedures, log-in
requirements, and computer and software programs might vary among trainees and
customer service representatives, plaintiff has still adequately alleged that he and
the other employees he seeks to represent were required to perform similar work
without pay, and he has adequately described the work in sufficient detail so that
other proposed members of the collective action who performed similar tasks may
be identified and notified of the action. See, Simmons, 2011 WL 855669, at *3
(conditionally certifying collective action involving unpaid overtime at call center
despite defendant’s claims that log-in requirements could differ among supervisors
and customer service representatives); Bishop v. AT&T Corp., 256 F.R.D. 503,
507 (W.D. Pa. 2009) (conditionally certifying collective action involving unpaid
overtime at call centers and noting that “enumerating the specifics of how each call
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center accounts for employee work hours does not counter an allegation of a
common policy of denying payment for such hours.”); Busler v. Enersys Energy
Products, Inc., 2009 WL 2998970, *3 (W.D. Mo. Sept. 16, 2009) (conditionally
certifying collective action, despite potential distinctions among plaintiffs, because
plaintiffs presented enough evidence at initial stage that employees were similarly
situated and subject to a common practice.”). To the extent this and defendant’s
other arguments regarding management policies go to the merits of plaintiff’s
claims, they are not yet ripe for resolution. See Dernovish,2010 WL 143692 at *2
(conditionally certifying collective action involving call center telephone
representatives being required to log in to computer systems before start of shift,
despite arguments by defendant that their written policies prohibited such practices
and that employees have different managers and job requirements; these arguments
go to merits, and plaintiffs made adequate showing of being similarly situated
because they were all required to log in before they could work); Loomis v. CUSA,
LLC, 257 F.R.D. 674, 676 (D. Minn. 2009) (court does not make credibility
determinations or findings of fact with respect to contradictory evidence submitted
by parties at this initial stage).
The same is true for defendant’s argument that plaintiff has failed to allege
that he was entitled to overtime. Plaintiff does allege a failure to properly pay
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overtime compensation, and he and other potential opt-in plaintiffs have submitted
declarations that they were full-time employees and were not properly
compensated for all overtime hours. Whether plaintiff actually worked more than
40 hours per week also goes to the merits of this case and will be addressed at a
later stage of the litigation. Simmons, 2011 WL 855669, at *4 (whether plaintiffs
at call center actually worked more than 40 hours goes to merits of litigation and
does not preclude class certification): Greenwald v. Phillips Home Furnishings
Inc., 2009 WL 259744, *6 (E.D. Mo. Feb. 3, 2009) (whether plaintiffs actually
worked more than 40 hours goes to the merits).
For purposes of this motion, these arguments do not preclude conditional
certification of a collective action. After discovery is complete and the matter is
fully briefed, I may decertify the collective action if defendant shows that is
appropriate then. But I cannot deny conditional certification of the proposed
collective action simply because plaintiff may not ultimately prevail on his FLSA
claim.
As plaintiff has pled a willful violation, a three-year certification period is
appropriate. See Simmons, 2011 WL 855669, at *4 (three-year certification
period); Beasely v. GC Services LP, 270 F.R.D. 442, 445 (E.D. Mo. 2010) (same).
However, as plaintiff has cited no legal authority supporting his request for tolling
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the limitation period upon conditional certification, the Court will not grant this
relief. I agree with defendant that plaintiff is not entitled to the social security
numbers and phone numbers of potential class members at this time. Rather,
defendant shall simply provide plaintiff with the names, last known addresses, and
dates of employment for all potential class members. If, however, notices sent by
mail are returned and additional information is required to notify potential class
members, then I expect counsel to meet and confer in good faith about this issue
and attempt to resolve it in a manner designed to safeguard the privacy of potential
class members and without further Court involvement. I also believe that posting
of the notice in a conspicuous location (whether by a time clock or elsewhere) in
defendant’s Farmington call center is appropriate. Finally, I agree with plaintiff
that a ninety-day consent to join period is appropriate. With these guidelines in
mind, I expect the parties to meet and confer in good faith to agree upon a
proposed form of notice, to be filed for the Court’s consideration within 20 days of
the date of this Order.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ motion for order conditionally
certifying collective action [#36] is granted, and the Court conditionally certifies a
class of all current and former non-exempt employees of defendant Accent
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Marketing Services L.L.C. at its Farmington, Missouri call center who were
required to perform tasks such as booting up and shutting down their computers
and logging in and out of various programs without pay during their unpaid meal
periods and before and after their scheduled shifts, for a period of three (3) years
from the date of this Order.
IT IS FURTHER ORDERED that defendant shall provide plaintiff’s
attorneys with the names, employment dates, and last known addresses of all
potential class members within 14 days of the date of this Order.
IT IS FURTHER ORDERED that the parties shall file a joint proposed
form of notice for the Court’s consideration, consistent with this Order, within 20
days of the date of this Order. If the parties cannot agree on a joint proposed form
of notice after good faith efforts, then the parties shall file their own proposed
forms of notice, each with a brief memorandum setting out the areas of
disagreement and support for their position, for the Court’s consideration.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 13th day of August, 2013.
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