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James Brand, Individually and On Behalf of All Others Similarly v. Comcast Corporation and

September 26, 2012

JAMES BRAND, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
PLAINTIFF,
v.
COMCAST CORPORATION AND, COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC,
DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Young B. Kim

MEMORANDUM OPINION and ORDER

Plaintiff James Brand is employed by Comcast Corporation and Comcast Cable Communications Management, LLC ("Comcast") as a line technician.*fn1 He has sued Comcast under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq., the Illinois Wage Payment and Collection Act ("IWPCA"), 820 ILCS 115, et seq.,*fn2 and the Illinois Minimum Wage Law ("IMWL"), 820 ILCS 105/1, et seq., alleging that it failed to compensate him for work performed prior to and after his scheduled shift and during his lunch break and for time spent while on-call. In his Motion to Conditionally Certify a Collective Action and Facilitate Notice Pursuant to 29 U.S.C. § 216(b), Brand seeks to pursue his FLSA claims as a collective action. For the following reasons, Brand's motion is granted in part and denied in part.

Background

Comcast provides cable products and services to customers in the State of Illinois. It employs 358 line technicians who work in 33 different locations. (R. 42-1, Pierce Decl. ¶¶ 2-4.) The job of these line technicians includes making service calls, maintaining node health, repairing outages, conducting signal testing, and troubleshooting other system issues. According to Brand, Comcast employs a "home dispatch" system that permits line technicians to park their work vehicles at their homes, allowing them to drive from home to their first job site. Comcast refers to this practice as "home-garaging." Line technicians typically begin their day by logging onto Comcast's "Watch Tower" program via their company-issued laptop computers to check their routes and receive job assignments, allowing them to arrive at their first job assignment on time. Before leaving their houses, line technicians must load their laptops and meters onto their work vehicles, conduct a mandatory inspection of their vehicles, and complete vehicle inspection paperwork. Brand alleges that because Comcast requires line technicians to be onsite at their first scheduled job no later than 30 minutes following the start of a scheduled shift, they must perform any pre-shift work more than an hour before their shift begins.

During the day, Comcast requires line technicians to take a one-hour unpaid meal break. During that break, Brand claims that he customarily performs work-related activities and was expected to do so. At the end of their shifts, line technicians must unload their laptops and meters from their work vehicles. Brand asserts that he also regularly performed work from home off-the-clock, including responding to emails, completing paperwork, and monitoring the status of unfinished jobs. He further claims that every five weeks, he is required to be "on-call" for one week. Being "on-call" means that line technicians are scheduled to work from 3:00 p.m. to midnight and then be available from midnight to 7:00 a.m. Brand says that his activities and movement are restricted when he is on-call. Line technicians must be available to respond to reported outages in their service areas within ten minutes of receiving a service call and resolve the issue within three hours. While on-call, line technicians must stay with their vehicles at all times, may not allow non-Comcast employees into their vehicles, and must remain in close proximity to their service areas.

Brand's FLSA claims are based on his assertions that Comcast requires line technicians to perform work before and after their scheduled shifts and during their lunch breaks while also being "on-call" one week out of every five, all without proper compensation. According to Brand, although line technicians are scheduled to work nine hours per day, five days per week, the pre- and post-shift work and the work performed during the unpaid lunch break result in them working in excess of 40 hours per week.

Brand seeks certification of a collective action under the FLSA so that he may represent other line technicians who allegedly were also denied compensation. He believes that there are at least 50 line technicians who have been subjected to the same allegedly unlawful compensation practices. In each of their declarations, Brand and the opt-in plaintiffs assert that, "[f]or the past ten years, I have worked with approximately 18-30 other

[l]ine [t]echnicians at any given time. Like me, these other [l]ine [t]echnicians perform the same duties, are required to comply with the same directives, and are subjected to the same pay plans. Moreover, these line technicians are subject to the same time keeping practices and lack thereof." (R. 30-2, Brand's Decl. ¶ 13; Jackson's Decl. ¶ 14; Farmer's Decl. ¶ 13; Gunn's Decl. ¶ 10; Cooper's Decl. ¶ 14.) Accordingly, Brand asks this court to authorize the mailing of a proposed notice of this lawsuit to "[a]ll individuals who were employed, or are currently employed, by one or more of the [d]efendants, its subsidiaries or affiliated companies, as line technicians or any other similarly titled position at any time during the relevant statute of limitations period." (R. 37, Compl. ¶ 19.) The parties have consented to the jurisdiction of this court. See 28 U.S.C. § 636(c).

Analysis

The FLSA provides that "employers must pay overtime to employees working on an hourly basis." Kennedy v. Commonwealth Edison Co., 410 F.3d 365, 369 (7th Cir. 2005). If an employee works more than 40 hours per week, he must receive at least one-and-a-half times his regular wage for every extra hour worked. See 29 U.S.C. § 207(a)(1). Section 216(b) of the FLSA allows employees to pursue their FLSA claims through a collective action against an employer to recover unpaid overtime compensation on behalf of themselves and "other similarly situated" employees. Id. § 216(b); Alvarez v. City of Chicago, 605 F.3d 445, 448 (7th Cir. 2010). Although a collective action is similar to a class action authorized by Federal Rule of Civil Procedure 23, "[t]he principle difference is that plaintiffs who wish to be included in a collective action must affirmatively opt-in to the suit by filing a written consent with the court, while the typical class action includes all potential plaintiffs that meet the class definition and do not opt-out." Alvarez, 605 F.3d at 448. Potential members of a collective action who do not opt in are not bound by the court's decision. Jirak v. Abbott Labs., Inc., 566 F.Supp.2d 845, 847 (N.D. Ill. 2008).

Neither the FLSA nor the Seventh Circuit has specified how collective actions are to proceed. Id. Management of these actions has thus been left to the discretion of the district courts. See Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 171 (1989); see also Alvarez, 605 F.3d at 449 ("A district court has wide discretion to manage collective actions."). In determining whether an FLSA claim should proceed as a collective action, the court applies a two-step process.*fn3 See Rottman v. Old Second Bancorp, Inc., 735 F.Supp.2d 988, 990 (N.D. Ill. 2010).The process begins with the plaintiff demonstrating that there are similarly situated employees who are potential claimants. Russell v. Illinois Bell Tel. Co., 575 F.Supp.2d 930, 933 (N.D. Ill. 2008). In deciding whether potential class members are similarly situated, the court applies a "lenient interpretation" of the term. Jirak, 566 F.Supp.2d at 848. At the first stage, the plaintiff must make a "modest factual showing sufficient to demonstrate that [he] and potential plaintiffs together were victims of a common policy or plan that violated the law." Anyere v. Wells Fargo, Co., Inc., No. 09 C 2769, 2010 WL 1542180, at *1 (N.D. Ill. Apr. 12, 2010) (internal quotation marks omitted). If the plaintiff makes this "modest" showing, the court may conditionally certify the class and permit the sending of notice to the similarly situated employees, who then have the opportunity to opt in as plaintiffs. See Heckler v. DK Funding, LLC, 502 F.Supp.2d 777, 779 (N.D. Ill. 2007). At the second stage, the defendant may request that the court re-evaluate the conditional certification based on additional evidence acquired through discovery. Id. If the court determines that there is insufficient similarity to allow the named and opt-in plaintiffs to proceed with their claims on a collective action basis, the court may revoke the conditional certification. Id.

Comcast objects to issuing judicially supervised notice on several grounds. Its main argument against certification is that Brand has not shown that he is similarly situated to other potential class members. Pointing to inconsistencies among the declarations Brand provided, Comcast contends that Brand has failed to present sufficient evidence demonstrating an unlawful common policy or plan applied to all line technicians across Illinois. Because the only policies in place are lawful ones, Comcast argues that any deviations from those policies necessarily involve individual case-specific inquiries, making collective treatment inappropriate. Comcast further claims that Brand and the opt-in plaintiffs are not similarly situated to other line technicians because several of them maintain in a separate lawsuit-alleging racial discrimination against Comcast-that they are treated differently from line technicians outside of the facility at 721 East 112th Street, Chicago, Illinois ("112th facility") where they work.*fn4 Alternatively, Comcast suggests that even if conditional certification is allowed, the court should limit the approval of notice to line technicians who have worked at the same facility as Brand and the opt-in plaintiffs. Finally, the parties disagree over the logistics and wording of Brand's proposed notice.

After reviewing the declarations provided by Brand and Comcast, see Howard v. Securitas Sec. Servs., USA Inc., No. 08 C 2746, 2009 WL 140126, at *5 (N.D. Ill. Jan. 20, 2009), the court finds that under the lenient review which the allegations are afforded at this stage, Brand has made the modest showing of similarity required to justify sending judicial notice of this lawsuit to other line technicians at the 112th facility. The court also finds, however, that Brand has failed to make a similar showing regarding any unlawful common policy or plan at Comcast's other Illinois facilities.

Comcast begins its challenge against certification with Brand's allegations regarding pre- and post-shift work. Pointing to Brand's and the opt-in plaintiffs' declarations, Comcast argues that they complain of different conduct, which precludes a finding of sufficient similarity. Relying on the declarations of 19 non-plaintiff technicians, Comcast then argues that Brand's and the opt-in plaintiffs' allegations are inconsistent with the declarations of other line technicians, none of whom claim any pre-shift, post-shift, lunch break, or restrictive on-call work. Although not all of the opt-in plaintiffs claim pre-shift and post-shift overtime-opt-in plaintiff Farmer asserts that he had to perform post-shift work such as unloading his laptop and meter from his vehicle but alleges that he performed no work from home, and opt-in plaintiff Gunn asserts no pre-shift or post-shift work at all-all the other opt-in plaintiffs claim pre- and post-shift, lunch break, and restrictive on-call work meriting overtime pay. (R. 30-2, Brand's Decl. ¶¶ 6-10; Jackson's Decl. ¶¶ 6-11; Farmer's Decl. ¶¶ 6-10; Gunn's Decl. ¶¶ 6-7; Cooper's Decl. ¶ 6-11.) Moreover, although none of the declarations Comcast has provided point to uncompensated overtime in any of Brand's identified overtime categories, a review of these declarations demonstrates that none of these technicians work or have worked at the 112th facility where Brand and the opt-in plaintiffs work. Those declarations therefore do not speak to whether there was an unwritten policy resulting in line technicians working ...


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