Burch v. QWEST COMMUNICATIONS INTERN., INC.

• Decision Date: 16 December 2009
• Docket Number: Civil No. 06-3523 (MJD/AJB).
• Citation: 677 F. Supp.2d 1101
• Parties: Felicia BURCH, et al., on behalf of themselves and other individuals similarly situated, Plaintiffs, v. QWEST COMMUNICATIONS INTERNATIONAL, INC., et al., Defendants.
• Court: U.S. District Court — District of Minnesota

677 F.Supp.2d 1101

Felicia BURCH, et al., on behalf of themselves and other individuals similarly situated, Plaintiffs, v. QWEST COMMUNICATIONS INTERNATIONAL, INC., et al., Defendants.

Civil No. 06-3523 (MJD/AJB).

United States District Court, D. Minnesota.

December 16, 2009.

Donald H. Nichols, James H. Kaster, Matthew C. Helland, Sofia B. AnderssonStern, Matthew H. Morgan, Paul J. Lukas, and Reena I. Desai, Nichols Kaster & Anderson, PLLP, for Plaintiffs.

Daniel C. Barr, Jill L. Ripke, and M. Bridget Minder, Perkins Coie Brown & Bain, PA, and Melissa Raphan, Robert R. Reinhart, and Ryan E. Mick, Dorsey & Whitney LLP, for Defendants.

MEMORANDUM OF LAW & ORDER

MICHAEL J. DAVIS, Chief Judge.

I. INTRODUCTION

This matter is before the Court on Defendants' Motion for Decertification of Conditional Class Docket No. 306; Plaintiffs' Motion in Support of Class Certification Docket No. 312; and Plaintiffs' Motion in Support of Partial Summary Judgment Docket No. 317. The Court heard oral argument on August 14, 2009.

II. BACKGROUND

A. Factual Background

1. Parties and General Background

Defendants Qwest Communications International Inc., Qwest Communications Corporation, and Qwest Corporation (collectively "Qwest" or "Defendants") operate Consumer Call Centers and Small Business Call Centers in multiple states. The locations, number, and types of call centers have changed over the past few years. During the relevant time period, Qwest has operated inbound call centers in various states, serving consumer and small business customers.

Plaintiffs are more than 1,500 current and former non-exempt employees in Qwest's Small Business and Consumer Call Centers throughout the country. Plaintiffs are paid salary plus commission for all hours worked up to 40 hours per work week. Qwest's stated policy is to pay overtime of at least one-and-a-half times Plaintiffs' regular rate for hours worked over 40 per week.

Plaintiffs' primary job duties are answering inbound calls from Qwest customers or potential customers and dealing with service or sales issues. Plaintiffs have sales goals and availability goals (based on the amount of time the employee is ready to answer inbound calls from Qwest customers). All Plaintiffs are subject to the same company-wide time monitoring and compensation policies. Product lines, availability goals, sales goals, type of chains of command, and time monitoring practices are consistent across different call centers.

2. Qwest's Time Management and Compensation Methods

Qwest's corporate representative testified that Qwest pays its Sales Consultants and Sales and Service Consultants "based on the schedule, which includes all updates throughout the day." (Olvey Rule 30(b)(6) Dep. 55.) However, the Consultant needs to report the additional time worked—any additional time simply logged onto the system will not be counted for payment unless the Consultant affirmatively reports the extra time worked or a manager notices the overtime. Plaintiffs are required to affirmatively ask for compensation for the time they spend working in excess of scheduled time.

Qwest uses a system called Total View to maintain Consultants' work schedules and general payroll. Qwest uses the Total View system nationwide. Consultants' schedules are set into Total View more than two weeks in advance and include the start and end times for each shift, as well as scheduled break and lunch times. Total View then tracks, in real time, whether a Consultant is adhering to her schedule or not, based on when a Consultant logs into and out of the phone. Based on input from the Consultants or their superiors, the schedules are then updated on a real time basis to reflect the Consultants' actual schedules. Payroll is generated from the final updated schedules as reflected in Total View.

Each work day, Qwest's Total View scheduling system contains both "Scheduled Time" and "Actual Time" for each Consultant. Scheduled Time shows the shift that the. Consultant is assigned to work, plus any adjustments made to reflect the Consultant's actual activities, such as reported overtime, disability leave, and personal time. The Total View system sends the adjusted Scheduled Time to Qwest's payroll system. If a Consultant reports overtime, the Scheduled Time is updated to reflect the overtime worked. Consultants can report overtime by signing an exceptions log; by notifying the Resource Allocation Specialist desk in each call center by telephone or in person; or, more recently, by inputting overtime themselves directly into the Web Station system.

Actual Time only reflects a Consultant's phone log-in and log-out activities and his status selected on the phone, such as open taking calls, meeting time, lunch, or break. It does not account for circumstances such as "entitlement" time, which includes vacation or FMLA leave; Consultants who forget to log out of their phones or miscode their time; Consultants working on special projects where they are not logged onto the phones; or technical problems with the computer systems. Actual Time does not provide information to Qwest regarding what a Consultant is doing if she is not logged into the phone. So, Actual Time could be less than Scheduled Time. Even if Total View shows that an employee's Actual Time worked is longer than the employee's Scheduled Time, the employee is paid based on the adjusted scheduled work time. In other words, the Total View system will not automatically add time to Scheduled Time; overtime must be affirmatively reported.

According to Qwest, its phone log-in system does not serve as Plaintiffs' time clock, nor is payroll generated based on phone log-in and log-out times. Instead, the phone system is one of the ways that Qwest monitors Consultants' adherence to their schedules. Local Mission Control departments in each call center compare Consultants' actual phone activity with their scheduled activity in order to monitor Consultants' adherence to their schedules. Mission Control will then attempt to contact out-of-adherence employees to assess the situation. Local Mission Control can only monitor activities as long as Consultants are logged into their phones.

Qwest does not maintain computer log-in records, which would show when Consultants log into or out of their computers. Unless Plaintiffs affirmatively reported overtime, Total View would not capture Plaintiffs' alleged pre- or post-shift activities such as reading e-mails, completing sales and service orders, or performing customer call backs. However, the records would reflect scenarios in which the employee logs into Total View and begins to receive calls before the start of his schedule shift or stays on the telephone after the end of his scheduled shift.

Qwest has three categories of overtime: mandatory overtime, voluntary overtime, and incidental overtime. Mandatory and voluntary overtime is required or requested by Qwest, is scheduled in advance, and is included in the Scheduled Time submitted to payroll. Incidental overtime is spent completing the last call of the day; however, Qwest will only pay for that time if the, Consultant affirmatively reports the time, although Qwest has contemporaneous knowledge of and monitors that incidental overtime work as it occurs.

Plaintiff Matthew Burch testified that Qwest denies payment for incidental overtime if a Consultant does not report the overtime until the next day. Other Consultants averred that they could report incidental overtime the next day and still receive payment.

According to Qwest, in the past, it trained Consultants that the first act of their work day was to log into the phone and the last act of the work day should be to log off of the phone. In 2006 and 2007, Qwest began changing the policy at call centers so that Consultants were scheduled to start their shifts five or fifteen before they are scheduled to be available to take calls in order to allow for boot up time and meetings.

3. Qwest's Policies Regarding FLSA Enforcement

Qwest has a written policy prohibiting off-the-clock work and requiring Consultants to be compensated for all time worked. The policy requires nonexempt employees to report all work performed outside of their scheduled shifts and requires them to take scheduled breaks. Every year, Consultants must review Qwest's Code of Conduct, which includes a ban on falsifying time reports.

Qwest claims that its supervisors conduct regular training regarding the FLSA requirements and Qwest's ban on off-the-clock work. Supervisors remind employees during team "huddles" and by email that Qwest bans off-the-clock work and that all time worked should reported. Additionally, Consultants' coaches walk the floor of the call center throughout the day to monitor whether Consultants are working off the clock.

4. Pre-Shift Work

Generally, Plaintiffs testified that they usually started work 10 to 15 minutes before the start of their scheduled shifts. Plaintiffs testified that, before the start of their scheduled shifts, they were required to log into their computers and several software applications in order to be ready to accept calls from Qwest customers the moment their scheduled shifts began. Various Plaintiffs also testified about, a variety of other tasks that they performed before their shifts began, such as reading work emails.

Qwest counters that, in fact, Plaintiffs were trained that the first task of their workday was to log into their phones, not their computers. It points to testimony that Consultants did not need to start all of their computer programs before taking a call and that they were trained to access all of the necessary programs when the customer provided a phone number. Alternatively, Consultants could place their phone on a status that allowed them to not receive calls until their computers were ready. Qwest emphasizes the testimony of employees such as Aaron Almeroth, that they did not perform off-the-clock work as...