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Kernats v. Comcast Corp.

October 20, 2010

CYNTHIA KERNATS, TIFFANY GUY, MARION JOHNSON, AND TENISHA MCCOY, INDIVIDUALLY, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
COMCAST CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Virginia M. Kendall United States District Court Judge

Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiffs Cynthia Kernats, Tiffany Guy, Marion Johnson, and Tenisha McCoy, individually and on behalf of all others similarly situated ("the Plaintiffs"), sued Defendant Comcast Corporation ("Comcast") alleging violations of the Illinois Minimum Wage Law, 820 ILCS 105/1 et seq. ("IMWL"), for non-payment of all overtime wages (Count I) and the Illinois Wage Payment and Collection Act, 820 ILCS 115/1, et seq. ("IWPCA"), for non-payment of all straight-time wages (Count II). The Named Plaintiffs also individually allege violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq., for non-payment of overtime wages (Count III). Pursuant to Federal Rule of Civil Procedure 23(b)(3), the Plaintiffs move to certify their state law claims (Counts I and II) as a class action. For the reasons stated below, the Court grants the Plaintiffs' Motion.

BACKGROUND

The Plaintiffs work as hourly, non-exempt customer account representatives ("CAEs") in one of Comcast's eight Illinois customer service call centers. (R. 20, Am. Compl. ¶¶ 8-11; 21.)*fn1 In these eight Illinois call centers, Comcast employs approximately 2,300 CAEs. (Amend. Compl. ¶ 21; R. 23, Answer ¶ 21.) Although certain call centers address different types of customer issues, all CAEs share the same basic job description and primary duty-providing service and support to Comcast's customers and potential customers over the telephone-and all undergo similar training, work under common employment policies, and are subject to the same compensation scheme. (See Am. Compl. ¶ 17; R. 48, Pls' Class Cert. Mem. at 4.)

At the beginning of her shift, each CAE is required to log into her computer. (See Am. Compl. ¶ 2.) Comcast refers to this procedure as the "NT login"; the Court will refer to it as the "Initial Login." It is only after completing this Initial Login that a CAE can access and load the computer software applications she needs to take customer calls and, since 2008, to log into the telephone system itself.*fn2 ( See, e.g., Def. Appx. 27, Wright Dep. at 30:8-15; Def. Appx. 45, Zandonai Decl ¶ 3; Def. Appx. 39, Lewis Decl. ¶ 4; Def. Appx. 33, Green Decl. ¶ 4; Def. Appx. 26, Niles Dep. at 64:5-65:8.) Specifically, before taking customer calls, CAEs are required to have the CSG billing system loaded on their computer because it contains needed customer information. (See, e.g., Pls' Ex. 12, Goodman Dep. at 90:13-94:23; Pls' Ex. 4, Haubert Dep. at 101:7-10; Pls' Ex. 5, Holt Dep. at 55:5-25, 56:16-25.) Comcast also requires CAEs to perform non-phone activities, such as learning about new products, services, marketing campaigns, and other updates by reviewing company emails and accessing Comcast's "Casper" on-line reference tool. (See, e.g., Pls' Ex. 10, Lahr Dep. at 185:16-19, 186:15-19; Holt Dep. at 57:4-17, 100:5.) CAEs are also required to review their individual performance reports on a daily basis. (Pls' Ex. 11, Coffman Dep. at 153:21-25; Pls' Ex. 5, Holt Dep. at 86:17-24.)

Throughout the class limitation period, Comcast's Oak Brook, Tinley Park, Schaumburg, and Woodridge call centers have used the following metrics to evaluate CAE productivity: Sign On Time; Customer Availability; Average Handle Time; Comcast Quality Experience; Sales Upgrade Rate; and Work Order Accuracy. (Haubert Decl. ¶ 8; Def. Appx. 7, 2007 Billing/Service Goals.) The other four call centers began using the metric system in August of 2009. (See Holt Dep. at 44:10-45:2.) The Sign On Time metric measures the percentage of the CAE's scheduled shift that she is logged into the telephone system. (Def. Appx. 7, 2007 Billing/Service Goals.) CAEs must maintain a Sign On Time of 96% to avoid being placed into the "Improvement Required" category, but to be labeled as a "Strong Performance Achiever," a CAE must maintain a Sign On Time of 98%. (Def. Appx. 7, 2007 Billing/Service Goals.) Customer Availability, in turn, measures the percentage of total Sign On Time that the CAE is available to take customer calls. (Def. Appx. 7, 2007 Billing/Service Goals.) To avoid being placed into the "Improvement Required category, CAEs must maintain a Customer Availability of 90%. (Def. Appx. 7, 2007 Billing/Service Goals.) To be a "Strong Performance Achiever," however, CAEs must maintain a Customer Availability of 92.5% or more. (Def. Appx. 7, 2007 Billing/Service Goals.)

Comcast has also used three different methods of CAE timekeeping during the limitations period: the Manual System, the Automated System, and Employee Self Service ("ESS"). (Lahr Dep. 84:15-21.) Under the Manual System, CAEs completed handwritten timesheets, rounding their time to the nearest quarter-hour. (Def. Appx. 8 at P0273-274.) Under the Automated System, used in the Oak Brook, Woodridge, Tinley Park, and Schaumburg call centers between 2006 and December 13, 2008, timesheets were generated from CAE's phone logins-not the Initial Login. (See, e.g., Lahr Dep. at 98:19-99:5; Holt Dep. at 39:24-41:24; Haubert Dep. at 42:1-5.) Comcast personnel adjusted the phone login times based on any exceptions, and then rounded those times to the nearest quarter-hour for pay purposes. (Haubert Decl. ¶ 6.) Since December 14, 2008, Comcast has used ESS in all of its eight call centers. (Haubert Dep. at 42:1-5.) ESS is a computerized timesheet that requires CAEs to manually report their own time. The timesheets are audited by the CAE's supervisor by comparing the timesheets to the CAE's work schedules, exceptions, and the telephone login reports. (Haubert Dep. at 163:14-164:19.)

The Plaintiffs allege that Comcast failed to pay them and other similarly situated CAEs for all work performed, including overtime wages, in violation of Illinois wage and hour laws. (Am. Compl. ¶ 16.) Specifically, the Plaintiffs allege that Comcast required or knowingly permitted CAEs to perform unpaid work after their Initial Login, but before their scheduled start time, including booting-up their computers and initializing essential software programs. (Am. Compl. ¶ 18; Pls' Class Cert. Mem. at 1.) The Plaintiffs allege that this Initial Login to the computer system is the first principal activity of each CAE's day. (Pls' Reply at 8.)

The Plaintiffs contend that as a result of working this uncompensated time, they and other similarly-situated CAEs accrue time over forty hours in the workweek, for which they are not compensated at an overtime rate. (Am. Compl. ¶ 4.) To the extent that any uncompensated off-the-clock work by CAEs was straight-time hours, rather than overtime, the Plaintiffs also allege that Comcast violated the IWPCA. (Am. Compl. ¶¶ 41-46.) The Plaintiffs seek to certify two classes, one as to their IMWL claim and one as to their IWPCA claim. The Plaintiffs' proposed definition for the IMWL class is:

All persons employed as Customer Account Executives in Illinois by Defendant Comcast Corporation from June 3, 2006, to the conclusion of this action who worked in excess of forty (40) hours in any individual workweek, and who were not paid for all overtime worked at the rate of one and one-half times their regular rate of pay. (Pls' Class Cert. Mem. at 13.) The Plaintiffs' proposed definition for the IWPCA class is:

All persons employed as Customer Account Executives in Illinois by Defendant Comcast Corporation from August 17, 2002, to the conclusion of this action who were not paid for all time worked in individual workweeks. (Pls' Class Cert. Mem. at 13.)

During the limited class discovery, Comcast produced electronic records that identified CAE Initial Login times and scheduled start times. Specifically, Comcast produced 2,895,897 records relating to the Initial Login and scheduled start times of 7,933 CAEs for the period of April 26, 2005 through January 18, 2010. (See Pls' Ex. 3, Madansky Report ¶ 3.) Although no usable data is available for over 60% of the CAEs, the Plaintiffs' expert, Professor Albert Madansky's identified 355,265 records from 3,192 CAEs in which he could determine both the Initial Login time and the CAE's scheduled start time. (Madansky Report ¶¶ 3, 5.) According to Madansky, for these 3,192, the data demonstrates that the average difference between the CAEs' Initial Login and their scheduled start time is 11.4 minutes. (Madansky Report ¶ 7.) The parties also exchanged written discovery, secured declarations from class representatives, took a number of depositions.

STANDARD OF REVIEW

The Court has broad discretion to resolve whether certifying a class is proper under Federal Rule of Civil Procedure 23. Keele v. Wexler, 149 F.3d 589, 592 (7th Cir. 1998). In making this determination, the Court takes the substantive allegations in the complaint as true and, generally, does not examine the ultimate merits of the case. Eggleston v. Chicago Joumeymen Plumbers' Local Union No. 130, 657 F.2d 890, 895 (7th Cir. 1981). Before deciding whether a case should proceed as a class action, however, the Court should "make whatever factual and legal inquiries are necessary under Rule 23." Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001). The Plaintiffs bear the burden of demonstrating that their case meets all of the requirements of Rule 23. Williams v. Chartwell Fin. Servs., Ltd., 204 F.3d 748, 760 (7th Cir. 2000).

A party seeking to certify a class action must first show that the putative class satisfies the four threshold requirements of Rule 23(a): (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Fed. R. Civ. P. 23(a). If the party meets this initial burden, it must then show that the requirements for one of the subsections of Rule 23(b) are met. See Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). Here, the Plaintiffs seek certification under Rule 23(b)(3), which requires the Plaintiffs to demonstrate that questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. In ...


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