Deutsch v. My Pillow, Inc.

Background

Brandon Deutsch sued My Pillow, Inc. under the Fair Labor Standards Act (FLSA), alleging that the company failed to pay overtime for work performed before employees clocked in at its call center and after they returned from breaks. The complaint also asserted claims under Minnesota wage statutes, but those claims were not part of this motion.

Deutsch worked as an hourly customer service representative at My Pillow’s call center from December 2017 to October 2019. He alleged that employees had to arrive before their scheduled shifts, turn on and log into their computers, open necessary programs, and clock in through the company’s timekeeping system before they began receiving pay. He also alleged that employees had to wait for the timekeeping system to load after breaks before they could clock back in. According to Deutsch, this unpaid time could total eight to fifteen minutes before a shift and three to six minutes after breaks each workday.

Craig Lyons, an opt-in plaintiff, submitted a declaration stating that he worked at the call center from February 2018 to September 2019 and regularly performed unpaid pre-shift computer and program login work. He stated that the process regularly took five to ten minutes or more and that he repeated it after breaks. Shandrea Jenkins also filed a consent to sue. My Pillow disputed the amount of time involved and stated that its policy was to pay employees for all time worked.

Motion and legal standard

Plaintiffs moved for conditional certification of an FLSA collective action and for court-supervised notice to potential participants. In an FLSA collective action, employees must generally give written consent to join the case. At the first stage of the certification process, plaintiffs need only provide a colorable basis—meaning some factual support beyond bare allegations—for claiming that potential participants were similarly situated and affected by a common policy or plan. The court does not resolve credibility disputes or make final factual findings at this stage.

Court’s analysis

The court held that Plaintiffs met the showing required for conditional certification. Deutsch and Lyons described similar customer-service work and a similar process for logging into computers and the timekeeping system before being paid. My Pillow’s evidence also confirmed that call-center employees used a uniform clock-in process, although the parties disagreed about which steps were required and how long the process took.

The court found that these disagreements concerned factual and credibility questions that should not be decided on a conditional-certification motion. My Pillow’s badge-swipe and timekeeping evidence did not establish how long Deutsch waited at his workstation because the systems were not shown to use synchronized clocks. Lyons’s time records also did not show how long he spent at his workstation before clocking in. The court therefore concluded that Plaintiffs had shown a colorable basis for claiming that My Pillow used a common practice that left employees uncompensated for work time.

The court also found sufficient interest from potential participants. There were three interested people: Deutsch and the two opt-in plaintiffs, Lyons and Jenkins. Although the court described this as a close question, it concluded that the showing was sufficient under the circumstances, including Deutsch’s less-than-two-year tenure and his work on an overnight shift employing approximately ten people.

The court rejected My Pillow’s manageability argument at this stage. It concluded that questions about individual employees’ hours, breaks, and login times were better addressed after discovery, during the later stage of collective-action review, or when deciding the merits or damages.

Ruling and notice

The court GRANTED Plaintiffs’ Motion for Conditional Certification and Notification and conditionally certified a collective action. The court modified the proposed class definition to cover current and former customer service/sales representatives, or employees with the same or similar duties, who worked more than forty hours per week during the preceding three years and whose workweek included unpaid pre-shift or post-break time spent booting up or logging into computers or computer applications before clocking in and being paid.

The court ordered My Pillow to produce, within fourteen days, the full names, last known addresses, email addresses, and telephone numbers of potential class members. It MODIFIED the proposed notice, APPROVED the proposed consent-to-sue form, permitted electronic signatures, allowed potential participants ninety days to return consent forms, and authorized a reminder by mail and email on the forty-fifth day. The court did not decide whether My Pillow violated the FLSA or whether any employee was ultimately entitled to unpaid overtime.