United States District Court, D. Arizona
RUSSEL HOLLAND, District Judge.
Motion to Proceed as Collective Action
The Named plaintiff moves for conditional certification of a collective action. This motion is opposed. Defendants move for leave to file a sur-reply. This motion is opposed. Oral argument was requested on both motions but is not deemed necessary on either motion.
The Named plaintiff is Bonita Kathol. Defendants are American Express Company and AMEX Card Services Company.
Kathol is a former employee at defendants' Phoenix call center. In her amended complaint, Kathol alleges that defendants have violated the Fair Labor Standards Act (FLSA) because defendants did not pay overtime for pre-shift work and work performed during unpaid meal breaks. Kathol brings her FLSA claim on behalf of herself and other similarly situated current and former employees.
Kathol and the former Named plaintiffs were all employed as "collections specialists." More specifically, Kathol and the former Named plaintiffs all worked in defendants' Global Credit Administration (GCA) business unit. The GCA is divided into two departments, Credit and Fraud; and Kathol and the former Named plaintiffs, during the relevant time, all worked in the Credit department.
Kathol avers that she had to spend approximately 15 minutes before the start of her shift each day "pulling up" the call center's computer system and reviewing company memos and emails. The former Named plaintiffs make similar averments. Kathol avers that "[i]f I had arrived at my work station at the time my shift was scheduled to begin, I would have been unable to start the necessary programs on my work computer by my paid start time and would have been considered late to work by American Express." The former Named plaintiffs make similar averments. Kathol further avers that she was told by her supervisors "not to list any time spent performing work tasks prior to [her] scheduled shifts... because the company would not pay for it." The former Named plaintiffs make similar averments.
Former Named plaintiff Janet Seitz worked in departments other than GCA Credit during her tenure with defendants. She avers that
[w]hile employed in positions other than collections specialist at the call center, I also performed pre-shift work in order to pull up the necessary computer programs. The only difference in the pre-shift work performed in positions other than collections specialist was that some of the computer programs were different. It took approximately the same amount of time daily to pull up the necessary computer programs and review memos and emails prior to my scheduled shift in each position that I had at the Phoenix call center.
Kathol also avers that when she worked a shift that was 8 hours or longer, she was given a 30-minute unpaid meal period, that she was required to "log off" the phone system during her meal break, and that she would return to her work station on average 10 minutes prior to the end of her unpaid meal period in order to "pull the phone program back up on my work computer, review the performance tracking program updates on the computer, review company emails and memoranda, and meet with my supervisor." The former Named plaintiffs made similar averments. Kathol avers that she "was instructed to write a 30-minute unpaid meal period on all my timesheets for all scheduled shifts 8 hours or longer, regardless of whether I worked during part of the meal period" and that if she had "returned to [her] work station as [her] meal break was ending, [she] would have been considered late by American Express, because [she] would not have been able to resume fielding phone calls to customers until [she] completed pulling the necessary programs back up and reviewed email updates and memoranda." The former Named plaintiffs make similar averments. Seitz also avers that "[w]hile employed in positions at the Phoenix call center in addition to collections specialist I engaged in the same tasks for approximately the same amount of time during my unpaid meal periods. The only difference was that some of the programs that I had to pull up were different in different positions."
Defendants, however, contend that it is not their policy to require employees to perform off-the-clock work either pre-shift or when returning from unpaid meal breaks. Rather, defendants contend that it is their policy that non-exempt employees record all time worked. In December 2010, defendants "began rolling out formal written timekeeping policies (Timekeeping Requirements') to different Business Units...." Jeanne Stout, defendants' Director of Global Employee and Labor Relations, avers that "[a]lthough the Timekeeping Requirements are different in several respects, they all consistently state that employees are to record all time worked on their timesheets, employees are not to perform any off-the-clock work, and employees are not to work during their breaks or meal periods." The Timekeeping Requirements for GCA in the Phoenix call center were rolled out in October 2011. The "Clarification" that was given to Customer Care Professionals in the GCA Credit department instructed employees to "not perform any work during breaks", to "not perform any work prior to the start of your shift or during meal periods unless you receive approval from leadership", and to "[m]ake sure that you record on your timesheet all of the time you spend performing work-related tasks, such as taking calls, completing paperwork, reading work-related e-mail, etc." The Clarification further provided that employees were to
Record on your time sheet the time that you sit down at the scheduled beginning of your shift and start the process of logging into your ...