Over the past few years, employers have been besieged by “collective actions” filed under federal and state wage and hour laws. These lawsuits aggregate individual claims for unpaid overtime into class actions, thereby making it much more lucrative for a plaintiff’s attorney to invest the time and effort into pursuing the case. In Jones v. Xerox Commercial Solutions, LLC, No. 4:13-cv-650 (S.D. Tex., November 6, 2013), a federal court in Texas handed employers a victory by striking down an attempt to pursue a collective action.
In Jones, five customer service employees moved for class certification. The employees alleged that their employer, Xerox Commercial Solutions, LLC (“Xerox”), failed to pay them correct regular and overtime wages when the timekeeping system incorrectly “clocked them out.” They were compensated under two different payment systems—the pay-per-call model (“PPC model”) and a Results Based Compensation plan, which was based on hourly performance. The employees alleged that they were not paid for time spent finding a work station or waiting for customer calls, and that under both plans, workers often were logged off by supervisors.
To certify a class under the FLSA, Plaintiffs had to show a reasonable basis to believe that other potential similarly situated plaintiffs existed who wanted to “opt in.” In the Southern District of Texas, showing “similarly situated” requires proof of a single and class wide policy, decision, or practice.
The Court held that Plaintiffs presented no evidence “to suggest that Xerox has instituted a Texas-wide policy, written or otherwise, to deny call-center employees pay for time recorded in certain Aux Work modes or for time spent during a system failure.” The timekeeping systems varied by individual call centers, and the workers did not show that the systems operated consistently. The court wrote that “conditional certification of Plaintiffs’ requested class also is not warranted because Plaintiffs do not demonstrate a basis to find that they were logged out of the automated time-recording program in any systematic fashion or that [Xerox] had a plan or policy to log them out systematically.” Conditional certification was, therefore, denied.