Gaffers v. Kelly Servs., Inc.

• Decision Date: 24 August 2016
• Docket Number: Case Number 16-10128
• Citation: 203 F.Supp.3d 829
• Parties: Jonathan GAFFERS, Plaintiff, v. KELLY SERVICES, INC., Defendant.
• Court: U.S. District Court — Eastern District of Michigan

203 F.Supp.3d 829

Jonathan GAFFERS, Plaintiff,

v.KELLY SERVICES, INC., Defendant.

Case Number 16-10128

United States District Court, E.D. Michigan, Southern Division.

Signed August 24, 2016

Jason J. Thompson, Jesse L. Young, Kevin J. Stoops, Sommers Schwartz, PC, Southfield, MI, for Plaintiff.

Ashley C. Workman, Christopher M. Cascino, Gerald L. Maatman, Jr., Peter J. Wozniak, Seyfarth Shaw LLP, Chicago, IL, Shannon V. Loverich, William B. Forrest, Kienbaum, Opperwall, Birmingham, MI, for Defendant.

OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION AND DENYING DEFENDANTS' RENEWED MOTION TO STAY AND COMPEL ARBITRATION

DAVID M. LAWSON, United States District Judge

Plaintiff Jonathan Gaffers is employed by defendant Kelly Services, Inc. as a home-based call center agent. He filed this action under the Fair Labor Standards Act (FLSA) alleging that Kelly is not paying him for the time it takes for him to log on to Kelly's computer applications so he can perform his job, and for certain other time spent solving technical connection problems, all of which extends his total work time beyond 40 hours during most weeks. He, along with 20 other potential opt-in plaintiffs, seeks to conditionally certify the case as a collective action and notify hundreds of other similarly situated employees of their right to opt in to the lawsuit. Kelly has offered several reasons why the collective action should not be certified, and it also moves to stay the case because all of its employees since November 2014 have signed an agreement to give up their rights under the FLSA to prosecute or participate in a collective action; instead, Kelly contends, they must arbitrate any employment disputes on an individual basis. The parties have briefed both motions thoroughly, and the Court finds that the motion papers adequately set forth the relevant facts and law, so oral argument will not aid in the disposition of the motions. Therefore, it is ORDERED that the motions be decided on the papers submitted. See E.D. Mich. LR 7.1(f)(2).

Over 70 years ago, the Supreme Court held that an employer cannot force an employee to give up the rights that Congress granted under the FLSA. And much more recently, the Sixth Circuit has held that those non-waivable rights include the right to participate in a collective action. Because the pertinent sections of Kelly's employment contract, phrased as an arbitration provision, force employees to waive their non-waivable FLSA right to a collective action, those sections are illegal and unenforceable. Therefore, Kelly's motion to stay the case and compel arbitration will be denied. And because the plaintiff easily has satisfied the minimal showing necessary for conditional certification, the Court will grant the motion to conditionally certify the case as a collective action.

I. Facts

According to its website, Kelly and its subsidiaries "offer a comprehensive array of outsourcing and consulting services as well as world-class staffing on a temporary, temporary-to-hire, and direct-hire basis." Kelly says that it furnishes more than one million contract workers worldwide, employing about half that number, with the remaining workers engaged by its "supplier partners." As it relates to this case, Kelly "offers call center services through a program called KellyConnect, which is a comprehensive call center solution for its customers." Kelly employs workers as call center agents for the KellyConnect program in different settings, but most of its call center agents are employed via a "virtual call center" arrangement, where they work from their homes.

Plaintiff Jonathan Gaffers has worked for Kelly as a home-based call center agent since June 2014 at an hourly wage ranging from $10 to $11 per hour. At the start of each work shift, Gaffers says he must activate his computer and log in to various secure servers and applications, which takes him from 10 to 15 minutes per day. At the end of his shift, Gaffers must spend three to five minutes shutting down and logging out of those same computer systems and applications. However, Kelly has a policy by which it pays its home-based call center agents for no more than a total of 10 minutes per day for time spent on the startup and shutdown activities. Gaffers contends, therefore, that he is required to work between 3 and 10 minutes each day for which he is not paid. He also alleges that during the workday he will sometimes be disconnected from the virtual call center systems, and he then is required to place a telephone call to Kelly's technical support department to restore his access to the services. He sometimes is required to wait on hold for 10 to 15 minutes to speak to technical support staff, or to wait up to three or four hours for a return phone call. However, Kelly has a policy by which it pays its call center agents only for time spent actually speaking to technical support staff, and it limits payment for time spent dealing with technical problems to no more than one hour per day.

Gaffers attached to his complaint two pay statements showing that he was paid for 40 hours at his regular wage and 0.46 hours of overtime in the first week, and for 40 hours at his regular wage with 0.70 hours of overtime in the second week. He alleges that in these same weeks he should have been paid for between 15 and 60 minutes of overtime work that he spent logging into and out of the virtual call center systems, and that he also should have been paid additional overtime wages for unpaid time spent dealing with technical issues.

It appears to be undisputed that all of the members of the prospective class were employed as call center agents in various units of Kelly's "AppleCare" program. Kelly asserts that the program employs more than 6,000 employees working under 11 different job titles across 48 states. According to Kelly, the 11 job titles that members of the class worked under were: "(1) AppleCare Tier 1 Advisors; (2) AppleCare Tier 1 Chat Advisors; (3) AppleCare Tier 2 Advisors; (4) AppleCare Tier 2 Chat Advisors; (5) AppleCare Tier 1 CPU/Mac+ Advisors; (6) AppleCare Tier 1 CPU/Mac+ Chat Advisors; (7) AppleCare Tier 2 CPU/Mac+ Advisors; (8) AppleCare Tier 2 CPU/Mac+ Chat Advisors; (9) AOS Customer Service Representatives; (10) AppleCare Team Lead; and (11) IT SC Agents." Kelly contends that some of these titles indicate salaried positions that are exempt from the overtime pay requirement under the FLSA. See 29 U.S.C. § 213(a)(1) (excluding from the regulations of the overtime pay provisions "any employee employed in a bona fide executive, administrative, or professional capacity"); 29 C.F.R. pt. 541 (outlining the scope of the section 213 exemption). Kelly also asserts that agents in different roles use various combinations of 35 different computer and telecommunication programs and systems in their work, but, based on its review of declarations submitted by 20 potential opt-in plaintiffs, only three of those systems were used by all of the declarants.

Gaffers submitted a copy of a policy letter from Kelly addressed to its "AppleCare Advisors," suggestively entitled "Getting Paid Correctly! Read the Instructions Here!!!" Plf.'s Mot., Ex. D. That document offers the following directions to employees about the limits on time they could be paid for starting up and shutting down or dealing with technical issues relating to their computer and communication systems:

Note that no more than 5 minutes of "boot up" or "boot down" time will be paid. This means that that iDesk login time should not be more than five minutes prior to the start of shift—for example, if you start at 10am, you should not log into iDesk prior to 9:55am. You also should log into iLog right after logging into iDesk....

Note that you will NOT get paid for the time you are on hold with the Help Desk or Attendance Line. You will also not get paid for the duration of that tech issue...you will only get paid when reporting it to the Help Desk or Attendance Line.

Id. at 3. Gaffers also submitted declarations from six current or former Kelly employees. The declarants worked as virtual call center agents for Kelly through various dates between 2013 and today. They all were paid on an hourly basis, at rates ranging from $10 to $12 per hour. They all stated that they were subject to Kelly's policy by which they were paid no more than 10 minutes per day for time spent on startup and shutdown tasks. Each of the declarants stated that s/he regularly worked more than 40 hours per week, and estimated that s/he spent significantly more than 10 minutes per day in unpaid overtime on startup and shutdown tasks:

• Margaret Key worked from May 2012 to June 2014. She regularly spent an average of 15 minutes per day on startup and login tasks, and five to 10 minutes per day logging out and shutting down systems that she used. Supp. Decls. [dkt. # 41], Ex A (Pg ID 873).

• Erica Ramsey worked from September 2015 to December 2015. She typically spent between 5 and 20 minutes on startup tasks, and between eight and 30 minutes on shutdown tasks. Supp. Decls. [dkt. # 41], Ex B (Pg ID 878).

• Robert Sabot worked from August 2014 to November 2015. He estimated that he spent between 15 and 30 minutes per day on startup tasks, and between 10 and 20 minutes per day on shutdown tasks. Supp. Decls. [dkt. # 41], Ex C (Pg ID 883).

• Duane Truax worked from October 2011 to July 2013. He spent an average of 20 minutes per day on startup tasks, and between 20 minutes and two hours per day on shutdown tasks. Supp. Decls. [dkt. # 41], Ex D (Pg ID 888).

• Nhadia Montreuil was hired in May 2015 and still works for Kelly. She spends an average of 10 to 20 minutes per day on startup tasks, and between five and 30 minutes per day on shutdown tasks. Supp. Decls. [dkt. # 49], Ex A (Pg ID 960).

• Tressie Rhymer worked from December 2014 to November 2015. She spent between 20 minutes and two hours each day on startup tasks, and between 30

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