Chicago, ILOn October 19, Maria Guadalupe Amador filed a Fair Labor Standards Act (FLSA) collective action lawsuit against Kemper Corp., alleging that the insurance giant cheated her and other call center workers out of wages due under federal and Illinois law. Recent lawsuit news coverage has often focused on whether very small (de minimus) amounts of time must be counted in wage calculations under federal law. Ms. Amador’s off the clock work claims are not small, however. Further, the tasks to be accomplished during the unpaid time seem to have been essential to the workers’ performance of other tasks.
Amador et al. v. Kemper Corp. claims that the unpaid time was substantial, often totaling several hours per week per employee. This time, the violation of federal and state law appears to have been blatant. This time, the workers appear to have claimed what was owed to them.
Good customer service cost the employee, not the employer
According to the Complaint, customer service representatives were required by Kemper to be ready-to-go and on the phone the moment their shift started, even though it could take as long as a half an hour to log on to their computers and access the proper programs. There was also a lengthy log off and log on procedure to be performed during their meal breaks, which could cut into that time.
According to the lawsuit, employees were expected to work through designated meal breaks or other scheduled 15-minute breaks during shifts with higher call volumes, or be subject to disciplinary action. Kemper failed to pay call center workers for time they spent resolving frequent computer or equipment issues and failures. Employees were also required finish all calls no matter how long they took, so they were often handling calls past the end of their shift or into their scheduled breaks.
From the point of view of the customer, this sounds like good service. No one will likely argue against good service. The problem was that Kemper did not pay the call center employees for this work, even when the problems arose from issues beyond their control. Kemper shifted the cost of protecting the company’s reputation to those least likely to be able to afford it (and perhaps least likely to complain.)
The FLSA’s rules on “Compensable time”
The FLSA requires that employees protected by the law must receive at least the minimum wage and may not be employed for more than 40 hours in a week without receiving at least one and one-half times their regular rates of pay for the overtime hours. By statutory definition the term "employ" includes "to suffer or permit to work." A “Workday" in general, means the period between the time on any particular day when such employee commences his/her "principal activity" and the time on that day at which he/she ceases such principal activity or activities.
Kemper may ultimately argue that logging on or out of the system was not a “principal activity” of a call center worker’s job, but this seems like an uphill battle, especially in light of the rule that the workday, for which an employee must be paid, may be longer than the worker’s scheduled shift.
Work not requested but suffered or permitted to be performed is also work time that must be paid for by the employer. The Department of Labor’s FLSA “Fact Sheet #22” makes clear that if an employee voluntarily continues to work at the end of the shift to finish an assigned task or to correct errors, those hours are work time and are compensable.
The de minimus exception
Under the de minimis doctrine, employers are excused, in some circumstances, from paying employees under the FLSA for very small amounts of otherwise compensable time worked when that time is administratively difficult to track. The facts, as described in Amador do not seem to fit within this exception.
The Illinois Minimum Wage Law (IMWL)
Illinois law comes into play in this lawsuit, primarily in measuring, not which hours must be counted, but what payment is due. The FLSA still guarantees a minimum wage of only $7.25 per hour. Beginning January 1, 2021, the Illinois Minimum Wage Law guarantees a higher minimum wage of $11.00 per hour for workers 18 years of age and older. When state and federal minimum wage laws differ, the higher number is the one courts use to determine amounts owed by an employer.
Amador was only recently filed, so new twists and turns may develop. On the face of the Complaint, however, the situation looks fairly straightforward. It points, above all, to how common, wage underpayment is among groups of workers least likely to be able to afford it.
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