United States District Court, D. Minnesota
Tina Norris, Wendy Loepp, Sally Michalak, individually and on behalf of all others similarly situated, Plaintiffs,
Bluestem Brands, Inc., Blair, LLC, and Does 1-10, Defendants.
Robert Rusch, Molly E. Nephew, and David H. Grounds, Johnson
Becker PLLC, for Plaintiffs.
B. Murphy, Faegre Baker Daniels LLP; Samantha M. Rollins,
Faegre Baker Daniels LLP, for Defendants.
MEMORANDUM OPINION AND ORDER
RICHARD NELSON, UNITED STATES DISTRICT JUDGE.
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.
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.)
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.)
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.)
The Named Plaintiffs and Their Allegations
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.)
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. ¶
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.)
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.
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, ¶
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.)
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.)
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
(Id. at 24-25, ¶ 67.) Plaintiffs contend that
the above class is comprised of employees who are