Sandoz v. Cingular Wireless Llc
| Decision Date | 17 March 2011 |
| Docket Number | Civil Action No. 07–1308. |
| Citation | 769 F.Supp.2d 1047,16 Wage & Hour Cas.2d (BNA) 780 |
| Parties | Courtney SANDOZv.CINGULAR WIRELESS, LLC, et al. |
| Court | U.S. District Court — Western District of Louisiana |
OPINION TEXT STARTS HERE
Christopher Leonard Zaunbrecher, Briney & Foret, Lafayette, LA, for Plaintiff.Phyllis Guin Cancienne, Christopher Glenn Morris, Jennifer Burrows McNamara, Baker Donelson et al., Baton Rouge, LA, for Defendants.
RULING
“Plaintiff's Motion for Conditional Class Certification (Resubmitted)” [Doc. 67] was referred to United States Magistrate Judge Patrick J. Hanna for a Report and Recommendation. After an independent review of the record, the applicable statutory law and jurisprudence, and considering the objections filed, the Court ADOPTS IN PART the findings and recommendation of the magistrate judge. Specifically, the Court adopts (and supplements herein) the sections entitled “Factual and Procedural Background,” “Argument of Parties,” “Applicable Law and Discussion” [ Id. at 1–11]; the Court DECLINES TO ADOPT the section entitled “Minimum Wage Violation” [ Id. at 11–14]; and the Court ADOPTS the conclusion contained in the section entitled “Recordkeeping Violation” [ Id. at 15–16], although for different reasons than those cited by the Magistrate Judge.
Courtney Sandoz worked for defendants as a part-time retail sales consultant (“RSC”) in Lafayette, Louisiana, from October 10, 2004 until September 30, 2005. [Doc. 1–1] Plaintiff filed this action in Lafayette Parish state court on or about April 23, 2007, individually and as an opt-in collective action under the Fair Labor Standards Act, 29 U.S.C. § 216(b), arguing Cingular's payment policy for part-time workers violated the minimum wage provisions of the FLSA, 29 U.S.C. § 206. Specifically, plaintiff avers, in pertinent part:
2.
This is an action for penalties and attorneys fees under the Fair Labor Standards Act, 29 USCA § 206 and § 216 (“FLSA”) for Defendants' failure to timely pay minimum wages for hours worked.1
3.
Plaintiff was employed by Defendant in Lafayette Parish, Louisiana as a part time Retail Sales Consultant (RSC) from October 10, 2004 to September 30, 2005.
4.
Defendant defined a part time RSC as one who was regularly scheduled to work nineteen (19) hours per week, which Cingular called “regular hours”.2
5.
Defendant regularly scheduled Plaintiff and other similarly situated part time RSC employees to work more than nineteen hours per week. Cingular classified work hours over nineteen in a work week for those employees as Exception Time.3
6.
Defendant consistently failed to pay Plaintiff and other similarly situated employees any wages for scheduled Exception Time on the next regular paycheck, as required by 29 USCA § 206.
7.
Although Exception Time was entered on an employee time sheet in the scheduled hours section, Defendant's policy was to not pay any wages for Exception Time in the next pay check if the store manager failed to verify the hours worked in a separate time entry report. 8.
In such cases Defendants paid wages for only nineteen “regular hours” in the next pay check at the employee's regular rate. The effect was to pay Plaintiff and other similarly situated employees a sub-minimum wage in the next check for all hours worked in each week an employee was scheduled to work more than thirty four hours.
9.
Defendants' practice violated 29 USCA § 206, which requires an employer to pay an employee in the next regular pay check for all hours worked in a workweek at a rate not less than the minimum wage. Where it is not possible to determine the actual time worked before the payroll entry deadline, the law requires payment for all scheduled hours at not less than minimum wage in the next check, and permits later adjustments for full wages at the employer's regular rate and for overtime.
[Doc. 1–1, pp. 1–2] Plaintiff asserts defendants are “liable to Plaintiff and similarly situated part time Retail Sales Consultants for penalties and liquidated damages in an amount equal to and in addition to the late paid minimum wages,” and “for the plaintiffs' reasonable attorneys fees and expenses, pre judgment and post judgment interest on the award, costs and for all other legal, or equitable relief which this Court may deem appropriate.” [Doc. 1–1, ¶ 11, p. 4 (prayer for relief) ]
Defendant describes its pay structure for RSCs as follows:
To assist with staffing needs, some stores employ RSCs on a part-time basis, although the number of part-time RSCs and their “standard” hours vary from state to state and from year to year. For example, from April 2004 through early 2006, retail stores in Louisiana hired part-time RSCs for a standard 19 hour week. Those employees were considered 19–hour employees, although they could work more or less hours per week depending on store needs or a particular RSC's desire to work more hours. By way of comparison, during the same time period, stores in Mississippi and Alabama hired part-time RSCs to work standard weeks of anywhere from 19 to 32 hours per week. Since 2006, however, stores in Louisiana, Mississippi, and Alabama have typically hired part-time RSCs to work 25 hours per week.
...
Plaintiff was employed by Defendants as a part-time (19 hours per week) RSC.... Although Plaintiff was categorized as a 19–hour per week employee, she often worked more than 19 hours per week. At the time Plaintiff worked for Defendants, any time worked by an hourly employee, such as Plaintiff, in excess of her standard hours per work was referred to as “exception time,” referring to the fact that the hours worked were an exception to the employee's standard hours.
[Doc. 48, pp. 3–5 (internal citations and footnotes omitted) ]
The policy and procedure for payment of exception time is described by defendant (and cited by plaintiff in support of her allegations) as follows:
During the Relevant Period, hourly employees were required to record their work hours on timesheets provided by Defendants, and to turn those timesheets in to their store managers on or before the second Saturday at the end of their two week pay period. The store manager was required to verify the time and enter it into the web based time entry system before 10:00 a.m. CT on the following Monday. All time entered into the system by 10:00 a.m. CT on the Monday following the end of the pay period was paid with the regular pay cycle on the following Friday. If no timesheet was submitted by the time entry deadline, the employee was paid the regular time.
[Docs. 17, p. 3; 34–1, p. 4; see also Doc. 48–1, ¶ 8]
The policy itself (entitled “Underpayment of Wages Due”) states, in pertinent part, as follows:
Underpayment of Wages Due
Every employee is entitled to receive payment for wages earned on the appropriate payday. Wages include bi-weekly wages including differentials. To ensure accurate payment on payday, the employee and supervisor must verify the time reported and ensure it is entered by the time entry deadline. Any discrepancies should be reported to the employee's Manager who will inform the HQ Payroll Office immediately ....
When the payment falls below wages earned and the department does not notify the Payroll Office prior to the submission deadline/Payroll cut off ..., the employee, via their manager ..., may request special payment processing.... If no special handling is requested, the correction should be entered into MSS/Web Time, Kronos or TAS. Once entered, the correction will automatically flow to PeopleSoft for payment on the employee's next paycheck. If special processing is requested, the payment will be processed when administratively feasible based on the payroll processing cycle and volume of requests.
Special processing situations only include underpayment of bi-weekly salary earned, dismissal of an employee in states where payment is mandated, or legal circumstances that require payment prior to the next regular payroll.
In most circumstances, underpayment of supplemental wages, such as paid time off etc, regardless of the dollar value, will be paid on the employee's next regular scheduled paycheck.
...
Below are lists of earnings code [sic] that would be considered as:
+---------------------------------------+
¦ ¦Bi-weekly Salary:¦Supplemental: ¦
+--+-----------------+------------------¦
¦ ¦Regular ¦Bonus ¦
+--+-----------------+------------------¦
¦ ¦... ¦... 4 ¦
+---------------------------------------+
How to Correct Underpayments
Underpayments can occur for a variety of reasons and will be corrected by Cingular once they are researched and verified. Some of the underlying causes of underpayments include, but are not limited to, exception time reported incorrectly or in error ..., exception time not reported or not reported timely.... The method of correcting underpayments differs by the circumstances in each case. Below are procedures for the different methods of correcting underpayments.
If you have been underpaid, contact your Manager immediately.
[Docs. 48–2, pp. 7–8; 67–2 (emphasis in original) ]
Immediately following the above-quoted policy language, the policy provides various reasons underpayments could occur, and the “Correction Method” for that particular “Underpayment Reason.” The first “Underpayment Reason” example is entitled “Time Reporting Error (exception time submitted incorrectly, in error, or untimely resulting in supplemental pay being missed).” 5 Id. (emphasis added). The “Correction Method” is stated as The Court notes the “Correction Method” for untimely submission of excess time does not...
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