Deutsch v. My Pillow, Inc.

Background

The plaintiffs are current and former My Pillow customer-service and sales employees who worked as call center representatives at the company’s Chaska, Minnesota call center between 2017 and 2020. They seek compensation for time spent turning on computers and completing computer log-in steps before clocking into My Pillow’s electronic timekeeping system, ADP. They assert claims under the Fair Labor Standards Act and the Minnesota Payment of Wages Act.

My Pillow’s “call-ready process” included logging into a computer, logging into ADP, clocking in, opening Outlook, opening the My Pillow Order Tracker, and checking email. My Pillow began compensating employees after they opened the browser, logged into ADP, and clicked “clock in.” The plaintiffs estimated that the process generally took between five and eight minutes per day, although the time varied depending on the computer and whether it needed updates or had been powered down.

Expert testimony at issue

The plaintiffs retained Brian C. Grieser to conduct an elemental time study, meaning a study measuring the time required for separate steps in a work process. In a July 2022 study of My Pillow call center representatives, Grieser measured the time required to open and log into several programs before the first call. He reported average times of 24 seconds for opening and logging into Windows, 12 seconds for opening Outlook, 43 seconds for opening the My Pillow Order Tracker, and 33 seconds for opening and logging into ADP, for a total of about 112 seconds.

Grieser also reviewed at least one video made by plaintiff Craig Lyons in 2019 showing the computer boot-up and log-in process. He calculated that the process shown in the video took approximately 438 seconds, including time for booting the computer, logging into Windows, opening Outlook, and opening ADP.

My Pillow retained Dr. Robert G. Radwin to rebut Grieser’s opinions. Radwin criticized the study as unhelpful, based on insufficient facts or data, and not the product of reliable principles and methods. Radwin calculated that launching Windows and loading ADP took a combined average of 56.31 seconds.

My Pillow’s motion

My Pillow moved to exclude all of Grieser’s opinions under Federal Rule of Evidence 702 and the standards associated with Daubert v. Merrell Dow Pharmaceuticals. Rule 702 requires expert testimony to help the factfinder, be given by a qualified witness, rest on sufficient facts or data, use reliable principles and methods, and reliably apply those methods to the case.

My Pillow argued that Grieser’s opinions were not helpful because the 2022 study involved a different location, newer equipment, and a different group of employees from the 2017–2020 period at issue. It also argued that Grieser improperly included time for Outlook and the Order Tracker, that his study did not follow generally accepted time-study practices, that 24 observations were insufficient, and that his analysis of the Lyons video involved only basic math rather than specialized expertise.

The plaintiffs responded that Grieser’s testimony was offered to show that unpaid boot-up work existed and that the time could be calculated. They acknowledged that the 2022 study did not directly establish how long the plaintiffs’ process took from 2017 to 2020. They also maintained that Grieser was not offering a legal opinion about whether the time was compensable or whether My Pillow’s recordkeeping would legally satisfy any defense.

Court’s analysis

The court found Grieser’s testimony potentially helpful to the factfinder. Grieser clarified that his measurements ended when employees logged into ADP and did not include activities occurring afterward. The court concluded that My Pillow could challenge the inclusion of particular tasks through cross-examination and competing expert testimony.

The court also found the current study potentially relevant to whether unpaid boot-up work existed and whether such work could be quantified. That issue could bear on a possible de minimis defense. Under that doctrine, an employer need not pay for very small amounts of time that cannot practically be recorded for payroll purposes. The court stated that it would be improper for Grieser to testify about the legal conclusion that recording the time would not have been administratively difficult, but it found that the plaintiffs appeared to be offering his testimony only about the factual time-study results and the possibility of measuring the work.

The court declined to exclude the testimony based on the Outlook and Order Tracker calculations because Grieser provided separate calculations for individual tasks and did not offer an opinion about whether the time was compensable or should be applied to the entire group.

The court found that Grieser had adequately identified the starting and ending points for each measured activity. It also found that he sufficiently explained why he did not separate time spent using the keyboard or mouse from time spent waiting for the computer to process information. Because he measured one activity at a time, the court also rejected My Pillow’s argument that the study improperly combined simultaneous activities.

The court further found that the study relied on generally accepted methods for a census study, which examines the population at issue rather than using a sample intended to represent a larger population. The court treated My Pillow’s criticisms about the number of observations and the study’s error rate as matters for cross-examination and competing evidence rather than grounds for excluding the testimony.

Finally, the court ruled that Grieser’s analysis of the Lyons video involved more than basic arithmetic because it could help the factfinder consider whether My Pillow could have observed and calculated the time employees spent on computer work before clocking in. Conflicting evidence existed about whether modifications to Lyons’s computer made it unrepresentative, but that dispute did not require exclusion of the testimony.

Disposition

The court denied My Pillow’s Motion to Exclude Expert Testimony of Brian C. Grieser. The ruling allowed the testimony to be presented, subject to cross-examination, competing expert evidence, possible pretrial evidentiary rulings, and objections at trial. The court also stated that the matter was set for trial on July 31, 2023.