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Norris v. Bluestem Brands, Inc.

United States District Court, D. Minnesota

April 26, 2018

Tina Norris, Wendy Loepp, Sally Michalak, individually and on behalf of all others similarly situated, Plaintiffs,
v.
Bluestem Brands, Inc., Blair, LLC, and Does 1-10, Defendants.

          Jacob Robert Rusch, Molly E. Nephew, and David H. Grounds, Johnson Becker PLLC, for Plaintiffs.

          Andrew B. Murphy, Faegre Baker Daniels LLP; Samantha M. Rollins, Faegre Baker Daniels LLP, for Defendants.

          MEMORANDUM OPINION AND ORDER

          SUSAN RICHARD NELSON, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the Appeal/Objection (“Objection”) [Doc. No. 105] filed by Plaintiffs Tina Norris, Wendy Loepp, and Sally Michalak (collectively, “Plaintiffs”) to Magistrate Judge Tony Leung's Order issued on January 10, 2018 (“January 10 Order” or “Order”) [Doc. No. 103]. In the Order, Magistrate Judge Leung granted in part and denied in part Plaintiffs' Renewed Motion for Conditional Certification and Notification to All Putative Class Members Under 29 U.S.C. § 216(b) (“Plaintiffs' Motion”) [Doc. No. 77]. After conducting a de novo review of all the files, records, and proceedings herein, this Court overrules in part and sustains in part Plaintiffs' Objection to the magistrate judge's January 10 Order.

         I. BACKGROUND

         The magistrate judge's Order thoroughly and accurately sets forth the background and procedural history of this case, so this Court recites here only the facts necessary to contextualize and rule on Plaintiffs' Objection. Pursuant to the Fair Labor Standards Act (“FLSA”), 19 U.S.C. § 201, et seq., the Pennsylvania Minimum Wage Act of 1986 (“PMWA”), 43 Pa. Stat. § 333.101, et seq., and the Pennsylvania Wage Payment and Collection Law (“PWPCL”), 43 Pa. Stat. § 260.1, et seq., Plaintiffs filed this class and collective action on behalf of themselves and other similarly-situated current and/or former Telephone Sales Agents, Customer Service Agents, or other call center employees (all collectively, “Call Center Agents” or “CCAs”) who perform similar job duties for Defendants. (Second Am. Compl. (“SAC”) [Doc. No. 86] ¶ 1.) As the underlying basis of their claims, Plaintiffs allege that they “were regularly required to work a substantial amount of time off-the-clock as part of their jobs” as CCAs and “were never compensated for this time.” (Id. ¶ 45.) Plaintiffs seek to recover allegedly unpaid overtime compensation and other wages. (Id. ¶ 8.)

         A. Defendants' Business

         Defendant Bluestem Brands, Inc. (“Bluestem”) is a Delaware corporation headquartered in Minnesota. (Id. ¶ 18.) Bluestem is “the parent to 13 fast-growing eCommerce retail brands, ” including Defendant Blair, LLC (“Blair”). (Id.) Blair is a Delaware limited liability company headquartered in Warren, Pennsylvania, and has call centers in Warren and Erie, Pennsylvania. (Id. ¶ 20.)[1]

         Defendants employ CCAs at their various call centers. These employees work either full-time or part-time. (Id. ¶ 5.) Defendants' CCAs are generally tasked with answering the phones and providing customer service. (Id. ¶ 3.) Their duties include taking orders, selling products, and answering customer inquiries. (Id.) Accomplishing these duties requires that the CCAs use Defendants' telephones, computers, and associated computer programs. (Id. ¶ 48.)

         B. The Named Plaintiffs and Their Allegations

         The named Plaintiffs are each former hourly-paid CCAs who were employed by Defendants. Norris resides in Erie, Pennsylvania, and was employed by Defendants as an hourly Telephone Sales Agent between July of 2013 and June of 2016. (Id. ¶¶ 15, 30.) Norris worked at Defendants' Erie call center. (Id.) As a Telephone Sales Agent, Norris answered customer calls and placed orders for Blair-brand products, as well as products from other retailers associated with Bluestem. (Id. ¶ 31.) She was also responsible for “up-selling” products and programs, answering questions about the products, and assisting customers with product substitutions. (Id.) Throughout her employment with Defendants, Norris regularly worked 40 hours per workweek, but she occasionally worked in excess of 40 hours per week. (Id. ¶ 44.)

         Michalak similarly resides in Erie, and was employed by Defendants as an hourly Customer Service Agent from approximately August of 2006 to January of 2017. (Id. ¶¶ 16, 34.) Michalak also worked at the Erie call center. (Id. ¶ 34.) Much like Norris, Michalak placed orders, helped customers exchange defective products, and generally assisted customers with questions about products. (Id. ¶ 35.) Throughout her employment with Defendants, Michalak regularly worked 40 hours per workweek, but occasionally worked in excess of 40 hours per week. (Id. ¶ 44.)

         Finally, Loepp resides in Waco, Texas, and was employed by Defendants as an hourly Customer Service Agent from approximately August of 2011 to April of 2012 and again from August of 2014 through the end of December of 2014. (Id. ¶ 17.) She also worked at the Erie call center. (Id. ¶ 39.) As a Customer Service Agent, Loepp was tasked with answering customer calls and placing orders for various products, as well as “up-selling travel insurance, answering questions about the products, ” and generally “assist[ing] customers with questions about products no longer sold and helping them find similar substitute products.” (Id. ¶ 40.) Throughout her employment with Defendants, Loepp regularly worked 16 to 28 hours per workweek. (Id. ¶ 43.) She never worked more than 40 hours per week. (Id.)

         Plaintiffs allege that throughout their employment with Defendants, they were “regularly required to work a substantial amount of time off-the-clock as part of their jobs . . . [but] were never compensated for this time.” (Id. ¶ 45.) They allege that they and other similarly-situated individuals “were subject to Defendants' policy and practice of employing them to work pre-shift and post-shift off-the-clock time without compensation.” (Id. ¶ 5.) Specifically, with regard to pre-shift work, Plaintiffs allege that Defendants required them to “allot time to come into the office before their scheduled shifts to boot up their computers and launch and log into all necessary programs (including, but not limited to, Sharepoint and email) and check for any updates or any other necessary work related information from their supervisors or the corporate office.” (Id. ¶ 49.) Plaintiffs contend that it was not until they completed this “boot up procedure, ” which took approximately ten minutes per shift, that they were finally “allowed to pull up Defendants' timing keeping [sic] system and clock in.” (Id.) Plaintiffs further allege that if they “clocked in before their technical start time of their shifts, Defendants refused to recognize pre-shift time as compensable.” (Id. ¶ 51.)

         With respect to post-shift work, Plaintiffs state that they would “receive final customer calls at, or very near, the technical end time of their shifts, ” and that “[t]hey would then have to follow through the call to completion, regardless of how long the call lasted.” (Id. ¶ 60.) Plaintiffs allege that if their final calls kept them “seven minutes or less past their scheduled shifts, Defendants would not recognize this post-shift time as compensable.” (Id.) It was only if “Plaintiffs performed post-shift work for eight minutes or more past their shifts' technical end times” that Defendants would recognize Plaintiffs' post-shift work as compensable. (Id. at 22, ¶ 63.)[2] Thus, according to Plaintiffs, they “performed approximately 10 to 35 minutes of postliminary call completion work per workweek” that went uncompensated. (Id. ¶ 61.) In all, Plaintiffs contend that Defendants' pre-shift and post-shift work “polic[ies] resulted in Plaintiffs and other similarly situated former and/or current Call Center Agents not being paid for all hours worked, including overtime premiums, in violation of the FLSA, the PMWA, the PWPCL, contract law and quasi-contract law.” (Id. ¶ 5.)

         Plaintiffs' SAC asserts five Counts. Count I asserts a violation of the FLSA for failure to pay overtime wages. (Id. ¶¶ 89-106.) Count II alleges breach of contract, and is asserted as a class action claim. (Id. ¶¶ 107-20.) This Count alleges that “[b]y failing to pay Plaintiffs and the Class for the ‘boot-up' and ‘call completion' time, Defendants breached their contract with Plaintiffs and the Class to pay their hourly rate for each hour worked.” (Id. ¶ 116.) Count III is a claim for unjust enrichment, and is again asserted as a class action claim. (Id. ¶¶ 121-30.) Count IV, in turn, alleges class action violations of the PMWA and the PWPCL. (Id. ¶¶ 131-40.) Finally, Count V is a FLSA retaliation claim under 29 U.S.C. § 215(a)(3) brought on behalf of Norris alone, and alleges that Defendants unlawfully terminated Norris on June 21, 2016 because she “complained to Defendants, on numerous occasions, about illegal pay practices.” (Id. ¶ 144; see Id. ¶¶ 141-45.)

         Relevant here, the SAC also makes collective action allegations in support of Plaintiffs' collective FLSA claim. Plaintiffs assert that they bring this action under 29 U.S.C. § 216(b) individually and on behalf of the following class:

All current and former Telephone Sales Agents, Customer Service Agents, or other job titles performing similar job duties employed by Bluestem Brands, Inc. and/or Blair, LLC (“Defendants”), at Defendants' call centers in Pennsylvania, at any time in the last three years, who were not paid for off-the-clock work during their preliminary “boot-up” time and postliminary “call completion” time.

(Id. at 24-25, ΒΆ 67.) Plaintiffs contend that the above class is comprised of employees who are ...


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