Norris v. Bluestem Brands, Inc.

Background

Tina Norris, Sally Michalak, and Wendy Loepp brought claims under the Fair Labor Standards Act (FLSA), seeking unpaid wages for pre-shift and post-shift work at Defendants’ call center in Erie, Pennsylvania. They alleged that call-center agents had to arrive early, start their computers, log into required programs, and review work-related information before they could clock in. The alleged pre-shift work generally took about ten minutes per shift.

The court had previously conditionally certified a narrower FLSA collective action consisting of telephone sales agents and customer service agents who worked at the Erie call center and were not paid for off-the-clock pre-shift “boot-up” work. The prior orders did not include the Franklin or Warren call centers but allowed Plaintiffs to submit a renewed motion if they obtained evidence that those facilities followed the same unwritten policy alleged at Erie.

Plaintiffs’ renewed motion sought to add employees from the Warren and Franklin call centers to the conditionally certified Erie group. They submitted one declaration concerning Franklin and three concerning Warren.

Franklin Call Center

The court concluded that Tammy Brown’s declaration could not provide a reliable basis for conditional certification of Franklin employees. Brown stated that she experienced a change from Blair or Orchard to Bluestem as her employer and saw employee handbooks updated accordingly. Defendants submitted evidence that Brown’s employment ended before Bluestem purchased Blair, making that account impossible according to the record described by the court.

Although courts generally do not decide credibility disputes at the initial conditional-certification stage, the court held that it could not rely on a declaration containing a blatant error or substantial falsehood when that declaration was the only evidence supporting certification for the Franklin facility. Without Brown’s declaration, the court found no evidence establishing a reasonable basis for Plaintiffs’ allegations concerning Franklin. It therefore declined to include the Franklin facility.

Warren Call Center

The court found that the Warren declarations supplied a reasonable basis to conclude that Warren customer service agents and telephone sales agents were similarly situated for conditional-certification purposes. Both groups allegedly had to arrive early, log into computers and programs, and be ready to take calls when their shifts began. The declarations described this process as taking roughly 10 to 20 minutes, and one declarant also described unpaid time spent taking calls during clock-in system problems.

The court also found that Warren employees and Erie employees performed similar pre-shift work. But similarity of work was not enough. Plaintiffs had previously relied on an unwritten policy at Erie, while the Warren evidence relied on a written policy, with some evidence of verbal enforcement. Because Plaintiffs did not show that Warren employees were subject to the same unwritten policy as Erie employees, the court found no common policy connecting the two facilities.

The court held that Plaintiffs had not followed the earlier order’s instruction to obtain and submit evidence supporting the same unwritten-policy theory. It concluded that conditional certification for Warren was therefore improper.

Matters Not Decided

The court did not reach Defendants’ arguments about whether enough potential participants had expressed interest in joining from Warren and Franklin. It also did not decide Plaintiffs’ arguments about extending the limitations period for potential opt-in plaintiffs or the parties’ arguments about proposed notice.

Disposition

The court ordered that Plaintiffs’ Renewed Motion for Conditional Certification and Notification to All Putative Class Members under 29 U.S.C. § 216(b) was DENIED. The prior Erie conditional certification and other consistent prior orders remained in effect. The parties were ordered to jointly contact the court within seven days to reschedule their settlement conference. Judge Tony N. Leung signed the order on August 28, 2018.