Droesch v. Wells Fargo Bank, N.A.

Background

Denise Droesch and Shakara Thompson brought this wage-and-hour action against their former employer, Wells Fargo Bank, N.A. They alleged violations of the Fair Labor Standards Act (FLSA), North Carolina wage laws, California wage laws, and California’s unfair-competition law. The proposed FLSA collective covered current and former Wells Fargo Telephone Bankers in the United States during the specified period, subject to exclusions and limitations involving earlier cases and settlements.

Thompson alleged that telephone-based employees were required or permitted to work without pay before and after their scheduled shifts. The alleged pre-shift work included starting computers, initializing software, and reading company emails and instructions before logging into the telephone system that recorded paid work time. The alleged post-shift work included finishing calls, closing software, logging off, and securing workstations and customer or proprietary information.

Wells Fargo separately moved to compel arbitration of Droesch’s claims and the claims of six opt-in plaintiffs. The court had granted that motion in a separate order and stayed those claims pending arbitration, leaving Thompson as the sole plaintiff for purposes of this motion.

Conditional-certification standard

Under section 216(b) of the FLSA, an employee may sue on behalf of other employees who are “similarly situated.” Conditional certification is the first, notice-stage step in the commonly used two-step process for FLSA collective actions. At this stage, the court makes an initial determination about whether potential opt-in plaintiffs may share a material legal or factual issue with the representative plaintiff. The burden is light, and the court generally reviews the pleadings and limited supporting evidence without deciding which side’s evidence is more credible.

Conditional certification does not create a separate legal entity or automatically add workers as parties. Its main consequence is allowing court-approved written notice to be sent to workers who may choose to join by filing written consent. After discovery, the opposing party may seek decertification under a stricter standard.

Court’s analysis

Thompson supported her allegations with declarations from herself, Droesch, and opt-in plaintiff Johnathan Harrison. The declarations described similar pre-shift and post-shift tasks and stated that the telephone system began recording paid work only after the employees completed the pre-shift processes and logged in.

The court declined to resolve Wells Fargo’s challenges that the declarations were boilerplate or contradicted by deposition testimony and other evidence. It explained that weighing competing evidence was not appropriate at the first certification stage. The court also rejected Wells Fargo’s reliance on authority that applied a stricter, second-stage standard, explaining that the Ninth Circuit’s decision in Campbell controlled the first-stage analysis.

The court concluded that Thompson adequately alleged that she was similarly situated to other telephone-based employees who, because of Wells Fargo’s policies and practices, were required to perform work off the clock in violation of the FLSA. The court therefore found that she met the light burden for conditional certification.

Notice issues and disposition

The court identified several problems with Thompson’s proposed notice plan. She had not submitted a proposed notice, sought to notify a broader group than the conditionally certified collective, had not addressed Wells Fargo’s objections to producing dates of birth and other personal information, and had not explained why her attorneys rather than a third-party administrator should distribute the notice. The court also declined to exclude potential collective members based on arbitration agreements at this stage, stating that arbitration agreements concerned defenses better addressed at the second step.

The court ordered Thompson to file a proposed notice within seven days. It directed the parties to meet and confer by videoconference about the notice and then file a joint statement attaching the proposed notice and identifying any remaining disputes by June 1, 2021. The court granted Thompson’s motion for conditional certification and stated that the order disposed of Docket No. 29.