Customer Service Representatives Stiffed of Pre- and Post-Shift Wages

Newark, NJOn September 22, Rusty Brittain and Richard Tounsel, two call center workers, filed a collective and class action unpaid wage lawsuit against their former employer. Brittain v. DialAmerica Marketing, Inc. alleges that DialAmerica had an established practice of failing to pay customer service representatives for all hours worked as required by the Fair Labor Standards Act. Townsel has filed an additional claim under Illinois wage and hour laws. The lawsuit seeks damages and other relief on behalf of all similarly situated employees for the past three years. DialAmerica employs more than 5,000 call service representatives and managers at locations throughout the country, so the affected class could be large.

Up to a half an hour of unpaid time per shift

Rusty Brittain worked as a call service representative for DialAmerica in Nebraska between September 2021 and January 2022 and ultimately made $9.00 per hour. Richard Townsel worked for DialAmerica in Illinois from November 2019 to March 2022 and ultimately made $12.75 per hour.

DialAmerica required them, as it requires all call center representatives to be “call ready” from the moment a shift began until the moment the shift ended. Being ready to field calls required logging into a computerized system, an often lengthy and sometimes error-prone process. Logging out, after a shift was over, was similarly time-consuming. Customer service representatives were not paid for these pre-and post-shift tasks and were subject to discipline for short shifts.

Employees were similarly required to be on calls until immediately before unpaid meal periods began and immediately after the meal period ended. This required the same long and cumbersome process with the same threat of discipline. The only practical solution, it seemed, was to either skip or seriously truncate the meal break.

The total unpaid time was substantial, totaling between 13 and 27 minutes per shift, according to the Complaint.  A hypothetical 5-shift week could thus include more than two hours of unpaid time, a particularly painful situation for low-wage workers.

DialAmerica was allegedly able to track the amount of time Brittain, Townsel and other customer service representatives spent in connection with the pre-, mid-, and post-shift activities, but it failed to do so. This appears to be a fairly common practice at call centers – so much so that the Department of Labor has issued specific guidance about how compensable time is to be calculated at this specific kind of business.

FLSA wage protections

In general, the FLSA provides that covered nonexempt employees are entitled to be paid at least the federal minimum wage as well as overtime at time and one-half their regular rate of pay for all hours worked over 40 in a workweek. The current federal minimum wage is still $7.25 per hour. Where state minimum wages are higher, employers are obligated to pay at least the state minimum.

Brittain and similar call center lawsuits are not about the minimum wage, per se. Rather, the issue is about how hours are counted.
Under federal law, covered employees must be paid for all hours worked in a workweek. In general, “hours worked” includes all time an employee must be on duty, or on the employer's premises or at any other prescribed place of work, from the beginning of the first principal activity of the workday to the end of the last principal activity of the workday.

In general, rest periods of short duration, usually 20 minutes or less, must be counted as hours worked. Bona fide meal periods (typically 30 minutes or more) need not be compensated as work time as long as the employee is relieved from duty for the purpose of eating a regular meal. If a break that is designated as a meal period is actually less than 30 minutes, it must generally be treated as compensable hours worked.

DOL Fact Sheet #64

Fact Sheet #64, entitled “Call Centers under the Fair Labor Standards Act,” is an attempt to combat the kind of abusive practice that cheated Brittain, Townsel and other call center workers out of legally protected wages. The fact sheet gives a very specific example of the first principal activity of the day for agents/specialists/representatives working in call centers to include starting the computer to download work instructions, computer applications, and work-related emails. It also specifies that a daily and weekly record of all hours worked, including time spent in pre-shift and post-shift job-related activities, must be maintained by an employer.

Are better days ahead for low-wage call center workers? As with all legal questions, the answer is a definite “maybe.” Brittain is a lawsuit to watch, however, not because it raises a new legal issue, but because the potential size of the class of employees covered could be substantial.