Minneapolis, MNThe apparent skirting of overtime pay laws that appears as work performed off the clock has rarely seen a bigger challenge than that of plaintiffs who have launched a class-action lawsuit against one of the nation’s leading call centers. According to various legal briefs, there could be as many as 51,021 potential class members.
On October 3, US Magistrate Judge Jeanne J. Graham in US District Court, District of Minnesota granted conditional certification for a class-action lawsuit alleging unpaid overtime and hours spent performing unavoidable work for which, it is alleged, there was no remuneration (CASE 0:13-cv-00946-JRT-JJG). Further, a motion by defendants Sykes Enterprises Inc. (Sykes, also known as SEI) and Alpine Access Inc. to have proceedings consolidated in the state of Florida was denied.
Attorneys expect SEI to appeal the consolidation ruling, as it pertains to location.
According to various court records, SEI is a large call center enterprise serving Fortune 1000 companies in North America and more than 20 other countries. SEI employs scores of call center associates in both brick-and-mortar call center facilities in the US, as well as associates who work from home.
At issue is the length of time it takes for customer service agents (CSAs) to boot up and log in to their systems in order to begin providing service for clients. The boot-up and log-in process has been variously described as lengthy - and there are also claims that the process can occur two or three times in any given workday.
The allegations are that CSAs are paid once they are finally logged in and begin the actual process of providing service to clients, but that there is no overtime pay or pay of any kind for the time CSAs spend booting up their systems and logging in.
A similar allegation is that CSAs are not paid for time they spend closing a call with a client, even though their computer workstation has timed out the session and logged out automatically. Pay is therefore calculated based upon log-in and log-out tracking, but not for actual prior work performed to facilitate the log-in, or for time spent with a client or client file following automatic log-out.
As SEI operates call centers in several states, the non-payment for work performed relates to California overtime law.
The proposed class-action lawsuit relates to the increase in so-called “donning-and-doffing” lawsuits, whereby plaintiffs believe that a requirement by an employer to don and then doff specific gear and/or clothing in order to perform their job function should be duly paid as part of the job function.
In the same way, plaintiffs in the proposed SEI class-action lawsuit believe they should be paid from the moment they sit down and begin the boot-up and log-in process, as required to perform their duties. Plaintiffs also hold they should be paid up until the time they finish serving clients, rather than at the point when the system logs out automatically.
According to the lawsuit, plaintiffs define their collective action as involving “All current and former Customer Service Associates of Sykes Enterprises, Inc. and Alpine Access, Inc. who during the last three years were not paid for off-the-clock work during their preliminary ‘boot-up’ time and postliminary ‘call completion’ time.”
Court documents also reveal that different timekeeping systems are employed throughout the system, stemming from Sykes’ 2010 merger with ICT Group, and later through Sykes’ August 2012 acquisition of Alpine Access.
Sykes Enterprises Inc., headquartered in Florida, owns Alpine Access Inc. as a wholly owned subsidiary. Alpine is based in Colorado. Sykes, however, submitted a motion to have the proposed class consolidated in the state of Florida, where Sykes has its headquarters in Tampa.
However, in her ruling, Magistrate Graham considered that Sykes operates 22 brick-and-mortar call centers in 11 states, with at-home CSAs employed in 45 states of the Union. As a result, the Court did not feel there was sufficient advantage or cause to have proceedings moved to Florida.
The lead plaintiff in the proposed class-action lawsuit resides in Minnesota.
The lawsuit established that unskilled, non-exempt call center positions typically pay between $8.00 and $11.80 per hour - higher than the federal minimum wage, but an effective wage that could drop to or even below minimum wage when unpaid wages or unpaid overtime is factored in.
Plaintiffs also note that their allegations dovetail with the US Department of Labor Fact Sheet #64, issued in July 2008, to alert workers to abuses identified as being prevalent in the industry. One such abuse, according to the lawsuit, is an employer’s refusal to pay for work “from the beginning of the first principal activity of the workday to the end of the last principal activity of the workday.”
Given the three-year window identified in the lawsuit, together with the inclusion of both current and former employees of SEI/Alpine Access, the potential punitive class amounts to 51,021 persons. SEI reported $1.1 billion in revenue in 2011.
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