The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
Constemecka Russell, a former call center employee of Illinois Bell Telephone Company, has sued Illinois Bell under the Fair Labor Standards Act (FLSA), 29 U.S.C. 206 & 207, seeking unpaid overtime wages and other relief. On September 15, 2008, the Court conditionally certified the case as a collective action on behalf of Illinois Bell employees who "worked in sales, service and in similar positions during the past three years and who did not receive pay for time spent working off-the-clock performing tasks before and/or after their scheduled shifts and during their unpaid breaks." Russell v. Ill. Bell Tel. Co., 575 F. Supp. 2d 930, 932-33 (N.D. Ill. 2008) (internal quotation marks and citation omitted).
During the course of discovery, Illinois Bell deposed twenty-four individual plaintiffs. On April 30, 2009, the Court permitted Illinois Bell to depose fifteen additional plaintiffs. See Russell v. Ill. Bell Tel. Co., No. 08-1871, 2009 WL 1209025, at *1-2 (N.D. Ill. Apr. 30, 2009).
Before the Court is Illinois Bell's motion seeking to decertify the collective action. For the following reasons, the Court grants Illinois Bell's motion in part and denies it in part.
Russell was a sales and service associate at Illinois Bell's consumer call center in Arlington Heights, Illinois from June 2003 to February 2008. Her work involved taking incoming calls from customers regarding service, equipment, and billing issues, as well as selling AT&T equipment, services and upgrades.
Russell received a base hourly wage, commissions, and bonuses. Her scheduled shift, or "tour," was nine hours long, including an unpaid one-hour lunch break and two paid fifteen-minute breaks. Russell contends, however, that she and other similarly situated Illinois Bell call center employees were required to perform unpaid work before and after their scheduled shifts and during meal breaks.*fn1
With the Court's approval, Russell sent notice about the pendency of the case to all current and former hourly employees of Illinois Bell's call centers in Arlington Heights, Chicago, Rock Island, and Oak Brook "who worked in sales, service and in similar positions during the past three years and who did not receive pay for time spent working off-the-clock performing tasks before and/or after their scheduled shifts and during their unpaid breaks." Russell, 575 F. Supp. 2d at 932-33 (internal quotation marks and citation omitted). In total, 487 plaintiffs opted into the litigation.
Sales and service representatives at Illinois Bell are organized into "teams," and each team reports to a mid-level manager called a "coach." Illinois Bell requires its sales and service representatives to follow a pre-determined schedule throughout the duration of their tours. The extent to which representatives follow their pre-set schedule each day is called "adherence." Call centers establish an adherence schedule to ensure that representatives are available to answer incoming customer phone calls throughout the day. See Onken Dep., Def.'s Ex. 34 at 32. Illinois Bell states that it has never required 100 percent adherence to the schedule. For instance, the Rock Island call center has an adherence goal of ninety-five percent, which means employees may deviate from their schedules for twenty-one minutes each day and still meet their adherence goals.
Illinois Bell has policies and mechanisms that allow employees time during their tours to do things other than answer customer calls without negatively affecting adherence. For instance, an employee may request an "exception" from a superior when she experiences computer delays, takes paid sick time, meets with coaches, or attends training. If an employee is answering phones and needs to address an issue offline, he may do so by requesting "call work," a term used to describe periods of time that representative goes "red" (or is no longer "open and available") while logged in the company's computer system. Employees are typically paid for the entirety of their scheduled tour, unless an exception or other deviation is entered.
In addition to adherence, Illinois Bell is concerned about each employee's "average handle time," which involves the amount of time a representative spends with a customer on the phone. Employees are expected to average approximately seven to ten minutes per call over the course of a month. See Pl.'s Ex. 47; Peoples Dep., Pl.'s Ex. 18 at 69; K. Howard Dep., Pl.'s Ex. 7 at 46. Coaches monitor the adherence and average handle time levels of their own teams, and Illinois Bell monitors the average handle time and adherence scores of each coach's team. An employee's average handle time forms part of his monthly performance evaluation or "PAR." Plaintiffs allege that failure to meet PAR can result in discipline and discharge.
As hourly employees, sales and service representatives are eligible to be paid overtime compensation. The company's Code of Business Conduct provides that
[n]onexempt (overtime eligible) employees must accurately report all hours worked each day and each week and may not work overtime unless it is approved by a supervisor in advance. However, all overtime hours worked by nonexempt employees must be paid regardless of whether they were approved. Managers are prohibited from requiring or permitting nonexempt employees to work "off the clock."
S. Barnes Dep., Def.'s Ex. 4 at 50.
Among other things, the company's overtime policy requires compensating employees for: (1) taking work home to complete, (2) performing work during lunch periods, (3) performing work before or after scheduled hours, (4) preparatory work prior to the start of a shift that is essential to their job, and (5) clean-up work after the end of a shift. Id. Employees are required to affirmatively enter an exception or overtime request. At the Arlington Heights and Chicago call centers, for instance, overtime sheets have sections in which employees record overtime worked before their shifts, during lunch, and after their shifts. At the Rock Island call center, employees report in overtime logs exceptions for total overtime worked. Overtime sheets or logs received then result in payment of overtime wages.
Defendants took the depositions of approximately forty plaintiffs. Although several plaintiffs testified that they were familiar with the methods used to report overtime, they also stated that other company-wide practices required them to work unpaid overtime. For instance, several plaintiffs testified that coaches and trainers instructed them to be "open and available" by the time their shift started. A sales and service representative is considered "open and available" or "call ready" only when she has logged into the system and is ready to answer phone calls. Plaintiffs allege that computers and applications took anywhere from three to twenty minutes to boot up and load. Plaintiffs claim they inferred from the "open and available" instruction that they needed to log into their computers and applications prior to their start time.
Illinois Bell denies that supervisors ever require representatives to log in prior to the start of their tour. Once a shift starts, Illinois Bell contends, employees have three minutes before they are marked tardy. Because call center workers do not need to log into every application before the start of their shift in order to be call ready, Illinois Bell claims that the three minute grace period is sufficient. The company also says that it allows exceptions for computer glitches. In sum, Illinois Bell contends that call center workers were not required or compelled to log in prior to their start times.
Most plaintiffs testified that the computer and its applications take over three minutes to load. As indicated above, they also claim their superiors require them to be call ready by start time. In an e-mail dated October 18, 2005, Matthew Onken, an Illinois Bell force manager, informed a sales and service representative that "Company Records indicate[d] [he was] late... by signing in after [his] start time. [Onken requested that] [g]oing forward [he] be opened and available for customers at [his] scheduled start time." Onken Dep., Pl.'s Ex. 14 at Ex. 4. Plaintiffs claim that from such instructions, they understood that they needed to log in prior to the start of their tour. Plaintiffs testified that although exceptions are allowed for computer problems, such exceptions are generally disfavored by supervisors (particularly in the mornings) and thus are rarely requested. Some plaintiffs also testified that they needed to open most applications to be "call ready." L. Howard Dep., Pl.'s Ex. 13 at 53-54; Peoples Dep., Pl.'s Ex. 18 at 68-69; K. Howard Dep., Pl's Ex. 30 at 65-67; Peart Dep., Pl.'s Ex. 18 at 37.
In addition, some plaintiffs testified that they worked unpaid overtime during their lunch break in order to complete work incidental to answering customer phone calls. For instance, they would call customers back during their lunch breaks, finalize notes in the system concerning a customer call, complete orders, or follow up with other customer service-related tasks. Some plaintiffs testified that they needed to complete these tasks during their lunch break because their adherence and average handle time goals do not budget time to complete such customer service-related work. Although some testified they were compensated or given exceptions for such tasks, others stated that they did not seek pay. When asked why they did not report customer service-related overtime work, plaintiffs gave responses that fit into the following five categories: they understood that only time spent on calls with customers qualified for overtime; they wanted to excel at their job and took pride in serving customers over breaks; filling out overtime sheets was inconvenient; they forgot to report overtime because they were in a rush to leave; or they assumed overtime was captured and paid by the system.
The evidence supports plaintiffs' contention that Illinois Bell resisted paying overtime for customer service-related work. In an e-mail dated August 18, 2006, Onken informed coaches that "if a Representative is working Flex Makeup or Overtime they need to be online and available for customers." Onken Dep., Pl.'s Ex. 14 at Ex. 7. The record also shows that Illinois Bell may have kept records of unpaid overtime worked. Katherine Williams stated that her call center keeps track of the overtime employees work and compensates in and out times, regardless of whether representatives submit a sheet. Williams Dep., Def.'s Ex. 56 at 52. Scott Kepner agreed that representatives "get paid... whether or not they report the exception" but noted that employees need to report exceptions for purposes of accuracy because a representative may leave for the day and forget to log out of the system. Kepner Dep., Def.'s Ex. 27 at 51-52.
Plaintiffs testified that the company expects them to complete notes and orders while on the phone with customers, despite the fact that some exceptions and call works are approved to complete such tasks. Some plaintiffs stated that too many call works on a representatives' record could lower their PAR and reflect badly on them. An email dated March 23, 2009 from a sales coach to his team states that there is "[z]ero tolerance for call work (1) sec[ond] [is] rounded up to the min[ute] - so if you are out for 1 sec[ond] that mean[s] that you are out of adherence for 1 min[ute]." Pl.'s Ex. 47. In another e-mail, a coach instructs his team that "[i]t is imperative that we are adhering to our schedules and only logging off for breaks, lunch, training or development." Pl.'s Ex. 33.
Illinois Bell requires its sales and service representatives to be "open and available" until fifteen seconds remain on their shifts. Hunter Dep., Def.'s Ex. 21 at 55. As a result, some plaintiffs testified, they often work past the end of their tour answering calls. Illinois Bell's overtime payment policies provide that work completed in less than eight minutes is unpaid. Once eight minutes of overtime work is performed, representatives are paid time-and-a-half on fifteen minutes, not just eight. Barbara Pasternak, a timekeeper, stated that she thinks increments smaller than eight minutes worked throughout the day are added together and paid if the time worked amounts to eight minutes. See Pasternak Dep., Def.'s Ex. 36 at 31-32.
Some plaintiffs testified that because they have to remain "open and available" through the end of their shifts, the last phone call answered takes them past the end of their shift. Such calls often do not take a full eight minutes to complete and therefore go uncompensated. Some plaintiffs also testified that they were not aware they would get pay for increments of time worked under eight minutes if they added up to eight minutes by the end of the day. Most plaintiffs with post-shift claims, however, stated their claims were based on the fact that calls regularly kept them at work past their shifts for less than eight minutes. One claimant testified that the time required to log out also kept him past his shift.
Plaintiffs now claim that they are owed pay for overtime worked from 2005 through 2008.
The FLSA provides that employers must pay the time an employee works beyond forty hours in one work week at one and one-half times the employee's regular rate of pay. 29 U.S.C. § 207 (a)(1). Pursuant to the FLSA, "any one or more employees for and in behalf of himself or themselves and other employees similarly situated" may sue an employer through a collective action to recover unpaid overtime wages. 29 U.S.C. § 216(b). Although no provision in the FLSA provides for court-ordered notice of the pendency of an action, the Supreme Court has held that "district courts have discretion... to implement 29 U.S.C. 216(b)... in [FLSA] actions by facilitating notice to potential plaintiffs." Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989). Once an FLSA action is filed, district courts have "managerial responsibility to oversee the joinder of additional parties to assure that the task is accomplished in an efficient and proper way." Id. at 171; see also Alvarez v. City of Chicago, 605 F.3d 445, 449 (7th Cir. 2010) ("A district court has wide discretion to manage collective actions.").
Courts commonly apply a two-part test to determine whether an FLSA claim may proceed as a collective action. The Court ruled on the first part of the test when it conditionally approved the case as a collective action. See Russell, 575 F. Supp. 2d at 933-38. At the first stage, "[p]laintiffs only need to make a minimal showing that others in the potential class were similarly situated." Mielke v. Laidlaw Transit, Inc., 313 F. Supp. 2d 759, 762 (N.D. Ill. 2004). Once notified, 487 plaintiffs joined the collective action.
The parties then engaged in discovery, and Illinois Bell triggered the second part of the test by moving to decertify the collective action. "At the second step... the court's inquiry is more stringent" because the factual record determines whether the plaintiffs are similarly situated. Id. The burden is on the plaintiffs to show that they are "similarly situated," as required ...