Chambers v. Sears

• Decision Date: 30 April 2010
• Docket Number: Civil Action No. H–08–3676.
• Citation: 793 F.Supp.2d 938
• Parties: Richard CHAMBERS and Steven Werchan, Plaintiffs,v.SEARS, ROEBUCK AND CO. and A & E Factory Service, LLC, Defendants.
• Court: U.S. District Court — Southern District of Texas

793 F.Supp.2d 938

Richard CHAMBERS and Steven Werchan, Plaintiffs,

v.SEARS, ROEBUCK AND CO. and A & E Factory Service, LLC, Defendants.

Civil Action No. H–08–3676.

United States District Court, S.D. Texas, Houston Division.

April 30, 2010.

Melissa Moore, Moore & Associates, Houston, TX, Michael Eugene Lovins, Attorney at Law, Austin, TX, for Plaintiffs.Dean J. Siotos, Henslee Schwartz LLP, Dallas, TX, Elizabeth N. Hall, Joseph K. Mulherin, Thomas G. Abram, Vedder Price PC, Chicago, IL, Allison Jeanne Miller, Connelly Baker Wotring LLP, Houston, TX, for Defendants.

MEMORANDUM AND ORDER

NANCY F. ATLAS, District Judge.

Pending before the Court in this wage dispute are several motions. ¹ Defendant Sears, Roebuck and Company (“Sears”) has filed Motions for Summary Judgment against Plaintiff Steven Werchan [Doc. # 41] and Plaintiff Richard Chambers [Doc. # 43] (collectively, “Plaintiffs”).² Also pending is Chambers' Motion for Class Certification and Expedited Discovery [Doc. # 40].³ All motions are fully briefed and ripe for decision. ⁴ After careful consideration of the parties' submissions, pertinent matters of record, and applicable legal authorities, the Court grants Sears' Motions for Summary Judgment and thus denies Chambers' Motion for Class Certification and Expedited Discovery as moot.

I. FACTUAL BACKGROUND

During all times relevant to this suit, both Plaintiffs were employed by Sears as in-home service technicians (“technicians”). Sears employs technicians to service and repair appliances in customers' homes. Technicians use company-owned vans to make service calls.

A. The Home Dispatch Program

Prior to 2001, technicians reported to work each day at a centralized location to pick up the company van and perform various other activities in preparation for the day's service calls, such as planning the service route and loading parts into the van.⁵ In 2001, Sears implemented the voluntary Home Dispatch Program (“HDP”).⁶ Under the HDP, technicians do not report to a centralized location to start their work day; instead they report directly to the first customer in the morning and return home from the last customer at the end of the day. Technicians keep the company van at their homes overnight. Sears pays for all commuting expenses related to the van, including gas, maintenance, and insurance. Technicians participating in the HDP are not paid for the first thirty-five minutes of their morning and evening commutes, that is, they are not paid for the first thirty-five minutes of the travel to the location of the first customer of the day, nor for the first thirty-five minutes of the trip to the technician's home from the last service call of the day. Technicians are compensated for time spent commuting from the first and last service calls in excess of thirty-five minutes, and are compensated for all trips to service calls in between the first and last calls of the day. Thus, assuming that a technician's travel to the first assignment of the day does not exceed thirty-five minutes, the technician's compensable work day begins when he arrives at the first customer's location. Similarly, assuming that the commute from the last stop of the day home does not exceed thirty-five minutes, his compensable work day ends when he finishes his activities at the last customer's location.

Not all Sears technicians participate in the HDP.⁷ Those that do not participate also use company vans to complete their service calls, but report every day to an office or alternative location where the company van is parked overnight. These technicians commute each day to the office or alternative location to pick up the van, and then proceed to the first customer's home. Non–HDP technicians are not paid for their commutes to and from the parking locations. Non–HDP technicians' compensable day begins when they pick up the vans and ends when they return the vans to the parking location at the end of the day.

Both Chambers and Werchan participated in the HDP.

A technician's participation in the HDP is governed by instructions and procedures set forth in a manual called the SST Help System Manual (“Help Manual”). The manual is available to technicians electronically on an SST, a laptop computer provided to HDP technicians, and technicians are instructed to become familiar with it. Both Plaintiffs acknowledge that Sears provided them with the SST Help Manual and instructed them to adhere to its policies. ⁸

1. HDP—Morning Activities

Under the HDP, technicians are instructed to plug the SST into a telephone line and electrical outlet in their home upon returning from the last service call of the workday. Overnight, the SST automatically uploads information about the day's completed service calls and downloads the next day's assignments from Sears' main frame computer. Technicians are required to log onto the SST in the morning to determine the location of the first service call.⁹ To log on, the technician merely must turn on the computer, type a six digit password, and click a “send” icon.¹⁰ Thereafter, the SST automatically brings up a screen with the address of the technician's first call of the day.¹¹ The technician is not required to stay near the SST while the screen with the address downloads.¹² Sears' expert estimates that the log on process takes an average of 8.5 seconds.¹³

The automatic transmission of route information to the SST sometimes fails. In this circumstance, the technician is instructed to manually upload the prior day's customer service information and/or download the current day's information by clicking a manual upload/download icon via the SST Utilities page.¹⁴ This process requires “a couple of key strokes.” ¹⁵ If the manual/upload download is not successful, the technician is directed to contact an outside vendor for assistance with the SST.¹⁶ If this latter step is required, technicians are to submit a payroll correction sheet, record the additional time on the SST, or report the additional time to an administrative employee, in order to be paid for the minutes spent resolving problems with the SST.¹⁷

Technicians are instructed to leave home for their first call in time to arrive by 8:00 a.m. Prior to leaving home, Technicians are to unplug the SST and transport it to the van.¹⁸ Technicians are directed to not call any customers, communicate with managers, or view SST text messages during the commute to the first customer's home (the SST does not allow technicians to view text messages until they have entered that they have arrived at their first call).¹⁹

Sears does not allow non-Sears employees to ride in the company van or allow technicians to use the van for running personal errands such as stopping for a sit-down meal, or picking up groceries on the way to or back from the first or last stop of the day. Quick stops, such as to pick up a cup of coffee, are permitted.

Technicians track their time by making entries on the SST. When beginning the commute to the first service call, the technician is to enter “start day.” This entry allows the SST to track the commute time and determine the portion of the commute, if any, that will be paid by Sears. When the technician arrives at the first customer's home, he makes an entry signaling that he is starting the route. This entry begins the workday for wage purposes “and is analogous to ‘punching in’ at an office or factory.” ²⁰

2. HDP—Service Route/Workday

As noted, Sears technicians are compensated for time spent traveling between service calls during the workday, as well as for all time spent repairing appliances and other work-related activities during the workday.

Technicians who work longer than five and a half hours in a work day are required to take a thirty minute unpaid lunch break each day. Technicians are responsible for logging their time on the SST for each service call, and for clocking in and out for the lunch break.

3. HDP—End of Route Activities

After completing the last service call of the day, the technician makes an entry on the SST signaling that the last call is completed. The SST prompts the technician to print out final reports for the day.²¹ Prior to beginning the commute home, and while still on the clock, the technician is to engage in “winding down” activities such as completing paperwork, putting funds from the day's calls in envelopes and documenting parts usage.²² “[I]f time permits, [the technician] takes care of any housekeeping in the van, including restocking and reordering parts.” ²³ The technician then ends the day's route by entering the van's mileage before driving home. ²⁴ Upon arriving home, the technician clicks “end day” on the SST to allow for the calculation of the portion of the evening commute, if any, that will be paid by Sears. Technicians are paid from the time they arrive at the first service call and enter that they are “starting the route” until they finish the last service call and enter the van's mileage, with the exception of lunch breaks.²⁵ The SST automatically makes any adjustments to technician pay based upon commutes in excess of thirty-five minutes.²⁶

4. HDP—Other Activities

Technicians receive by UPS packages “truck stock replenishment parts” at their homes. Under the HDP, the frequency of these deliveries varies from daily to once a week depending on usage. Technicians are directed to place the boxes of parts, unopened, into the van at a time of their choosing. The parts are not to be sorted and placed in the appropriate bins until sometime during working hours.²⁷

Technicians are also instructed to perform other tasks, such as depositing customer payments, mailing cash envelopes, turning over credit-card-receipt envelopes to management, returning unused parts, disposing of trash, or picking up uniforms or large parts during working hours or at a regularly scheduled meeting at the office.²⁸ Technicians are directed to inform their managers when their van needs service. The manager then...