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Patricia Hall and Walter Mccombs, On Their Own Behalf and For All v. Guardsmark

August 17, 2012

PATRICIA HALL AND WALTER MCCOMBS, ON THEIR OWN BEHALF AND FOR ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
GUARDSMARK, LLC, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Mitchell

MEMORANDUM AND ORDER

Plaintiffs, Patricia Hall and Walter McCombs, bring this action alleging that Defendant, Guardsmark, LLC, violated the Fair Labor Standards Act, 29 U.S.C. §§ 201-19 (FLSA), by requiring them to work as security guards for more than 40 hours per week without submitting such additional time for compensation. They allege that they were required to record only their official shift times, rather than time actually worked; that they were required to be at their post prior to the start of their shift without being compensated for such time; that they were similarly required to remain at their post after their shift ended without being compensated for such time; and that they were required to wear a uniform that they had to clean at home, without being compensated for the time spent on this task.

Presently before the Court for resolution is Plaintiffs' motion for an order authorizing notice to similarly situated persons pursuant to 29 U.S.C. § 216(b). For the reasons that follow, Plaintiffs have failed to demonstrate that they meet the standard for conditional certification and therefore this motion will be denied.

Facts

Hall worked as a full-time security guard on various shifts for Guardsmark from August 2008 to July 2009. (Hall Decl. ¶ 2.)*fn1 McCombs worked as a full-time security guard on various shifts for Guardsmark from August 2006 to August 2008. (McCombs Decl. ¶ 2.)*fn2 Both Plaintiffs state that Guardsmark disseminated common orders, regulations and instructions to all security officers in two manuals entitled "Guardsmark Means This to You" ("GMTTY")*fn3 and "General Orders Regulations and Instructions for Uniformed Personnel" ("GORI")*fn4 and that they were obligated to comply with GMTTY and GORI pursuant to their employment agreements*fn5 ;

that Guardsmark maintained a common written policy that required all security officers to track their hours worked by entering their approved shift start and end times on a Daily Activity Report form; that Guardsmark maintained a common written policy that required all security officers to track their hours worked by entering "only the number of hours they were authorized to work" in a "true hours worked" box on the Daily Activity Report; that barring an express authorization of overtime work, all Guardsmark security officers regularly complied with these policies by preparing Daily Activity Reports that showed eight hours worked per shift; that Guardsmark maintained a common written policy that required all security officers to complete a Weekly Time Record form showing the total number of hours each security officer was authorized to work each week; that Guardsmark supervisors regularly complied with this policy by preparing Weekly Time Records that showed they worked eight hours per shift; and that Guardsmark maintained a common practice of paying all security officers on the basis of their assigned shifts (i.e., eight hours per shift) rather than on their actual work start and end times. (Hall Decl. ¶¶ 4-10; McCombs Decl. ¶¶ 4-10.)

Plaintiffs state that they worked under a common written policy that required all security officers to arrive early for work so that shift transitions would run smoothly and on time, posts would not experience a lapse in security during shift changes and Guardsmark could minimize overtime hours and wages charged to its clients; that they regularly arrived at work at least 15 minutes before their scheduled shift start time to perform pre-shift work that included receiving pass down instructions, checking equipment, reviewing post orders, collecting schedules, meeting with supervisors, guarding, monitoring, patrolling, inspecting and surveilling; that Guardsmark knew they regularly arrived early because their supervisors regularly suffered and permitted them to perform this work, their supervisors saw them performing this work and regularly reviewed their time and pay records; that Guardsmark did not effectively prevent them from performing "off-the-clock" pre-shift work it did not want performed, accurately track the amount of "off-the-clock" pre-shift work they actually performed or pay all wages they were owed for such work; and that "[f]rom my experience working with and talking to my co-workers, I believe that other Guardsmark security officers were subjected to the same pre-shift policies and procedures, followed them like I did, and, as a result, were denied pay owed for pre-shift work." (Hall Decl. ¶¶ 11-16; McCombs Decl. ¶¶ 11-16.)

Similarly, Plaintiffs state that Guardsmark maintained a common written policy or practice that prohibited all security officers from leaving their post before their approved shift end time so that all security officers would remain on duty throughout their entire shift, be available to provide pass down instructions to their relief workers and so posts would not experience a lapse in security during shift changes; that they regularly worked about 15 minutes past their scheduled shift end time to perform post-shift work that included providing pass down instructions, putting away equipment, reviewing and completing their daily logs and event report and confirming their next work assignment; that Guardsmark knew they regularly stayed at their posts after their authorized shift end-time because their supervisors regularly suffered and permitted them to perform this work, their supervisors saw them performing this work and regularly reviewed their time and pay records; that Guardsmark did not effectively prevent them from performing "off-the-clock" post-shift work it did not want performed, accurately track the amount of "off-the-clock" pre-shift work they actually performed or pay all wages they were owed for such work; and that "[f]rom my experience working with and talking to my co-workers, I believe that other Guardsmark security officers were subjected to the same post-shift policies and procedures, followed them like I did, and, as a result, were denied pay owed for post-shift work." (Hall Decl. ¶¶ 17-22; McCombs Decl. ¶¶ 17-22.)

Finally, Plaintiffs state that Guardsmark maintained a common written policy that required all security officers to report to work wearing certain standard uniform items; that Guardsmark maintained a common written policy that made all security officers responsible for the care and maintenance of their uniform and equipment items; that Guardsmark maintained a common written policy that required all security officers to keep their uniform neat, clean and well pressed at all times; that Guardsmark maintained a common policy or practice prohibiting its security offices from maintaining their uniform components "on the clock" or at their work sites; that they regularly preformed between one and two (Hall) or between one and three (McCombs) hours of "off-the-clock" uniform maintenance each week without compensation including washing, spot cleaning, drying and ironing their work uniforms and shoes; that Guardsmark knew that its security offices regularly performed "off-the-clock" uniform maintenance work because such work could not be completed during assigned work hours or at assigned work locations, their supervisors regularly suffered and permitted them to perform this work, their supervisors saw the results of this work and regularly reviewed their time and pay records; that Guardsmark did not effectively prevent them from performing "off-the-clock" uniform maintenance work it did not want performed, require its security officers to maintain a contemporaneous record of their uniform maintenance work or pay all wages they were owed for such work; and that "[a]s a result of my experience working with and talking to and observing my co-workers, I believe that Guardsmark's other employees were subjected to the same uniform maintenance work policies and practices, and affected the same way by them." (Hall Decl.¶¶ 23-32; McCombs Decl. ¶¶ 23-32.)

Plaintiffs indicate that GMTTY stated that security guards would be assigned a "normal work schedule" of eight hours per day, forty hours per week (GMTTY at 40; Turner Dep. at 36*fn6 ); that Guardsmark's official policy was to pay its employees "for all hours worked" (GMTTY at 12, 40); that the employment agreement indicated that they were prohibited from "reporting to the premises or facilities of a client prior to [their] scheduled starting time or remaining [at work] after scheduled quitting time" (ECF No. 49 Ex. E ¶ 6); that overtime hours had to be approved in advance (ECF No. 49 Ex. J) and that such hours were tracked by Guardsmark (ECF No. 49 Ex. K); that employees were required to keep track of all hours worked by entering their approved shift start time and end times on a Daily Activities Report (GORI at 20, 85; Turner Dep. at 59-60, 67-69, 73-74); that barring an express authorization of overtime work, Plaintiffs and other security guards complied with these policies by preparing Daily Activities Reports that showed their time worked as eight hours, the length of their assigned shifts (ECF No. 49 Ex. M); that employees were required to complete Weekly Time Record forms showing their total number of authorized hours each week (GORI at 25; ECF No. 49 Ex. L; Martin Dep. at 50-52, 56-58, 85, 133*fn7 and that they regularly completed these Weekly Time Records showing that they worked eight hours per shift (ECF No. 49 Ex. O); that Guardsmark maintained a common written policy requiring supervisors to compare the hours recorded on each security officer's Daily Activities Report with the hours recorded on their Weekly Time Records at the end of each week and report any discrepancies between their scheduled hours and their actual hours (Turner Dep. at 104-07; ECF No. 49 Exs. L, P); that Guardsmark used the "approved" shift lengths showing on security officers' Weekly Time Records to calculate their wages (Turner Dep. at 28-32, 71; Martin Dep. at 30-31, 35; ECF No. 49 Ex. Q); that the employment agreement stated that "failure to properly complete Daily Reports that agree with the employee's Weekly Time Record may be cause for Guardsmark to withhold reimbursement to the employee for that period" (ECF No. 49 Ex. E ¶ 14); that Guardsmark maintained a common written policy requiring all security officers to be on post ready to start their tours of duty at the assigned commencement of duty shifts (GORI at 22; Turner Dep. at 21-22, 28-32, 60-61; Martin Dep. at 42-43); that Guardsmark did not maintain any system or mechanism to cross-check or confirm the actual time that Plaintiffs arrived at their job site or began performing work-related duties (Turner Dep. at 32); that Guardsmark maintained a common policy or practice prohibiting security guards from leaving their posts before their approved shift end time (Turner Dep. at 33-34); that Guardsmark did not maintain any system or mechanism to cross-check or confirm the actual time guards left their job site or stopped performing work-related activities (Turner Dep. at 32); that Guardsmark maintained a common written policy that required security guards to report to work wearing certain "standard uniform items" (GORI at 18; GMTTY at 11; Turner Dep. at 58-59; ECF No. 49 Ex. R); that Guardsmark maintained a common written policy making security guards "responsible for the proper maintenance and care of uniform and equipment items" issued to them (Am. Answer ¶¶ 11(k), 44; GMTTY at 11); that Guardsmark maintained a common written policy requiring security guards to keep their uniform "neat, clean and well pressed at all times" (Am. Answer ¶¶ 11(k), 44; GORI at 162-80; Martin Dep. at 115-17); that Guardsmark maintained a common policy or practice of providing security guards with fewer uniforms than the number of shift they worked each week (Am. Answer ¶ 46); that Guardsmark maintained a common policy or practice of prohibiting security guards from maintaining their uniform components "on the clock" or at their work sites and as a result these chores had to be performed off-the-clock and at home (Martin Dep. at 62, 101, 109-10); and that Guardsmark suffered and permitted regular offthe-clock uniform maintenance (Martin Dep. at 116).

Defendant does not contest the statements made in its documents. However, it points out that some of the statements in Plaintiffs' declarations are directly contradicted by the testimony they gave at their depositions. For example, at Hall's deposition, the following exchange occurred:

Q. You're testifying that you had to be there 15 minutes early?

A. Every day. .

Q. Do you recall testifying that you knew the policy was that security officers were not supposed to arrive until the start of their shift?

A. That's their policy, but we were told by Katie Bohnke that we had to be there 15 minutes early because we had to have everything ready at 8.

Q. So you were aware that Guardsmark's policy was that security officers were not supposed to arrive until the start of their shift; correct?

A. That's what their policy said, but we were told to be there 15 minutes early by our main supervisor from Pittsburgh.

Q. Who was that?

A. Katie Bohnke. .

Q. When did Katie tell you that?

A. The day she hired me. (Hall Dep. at 14-16.) She also testified that she had no evidence that Bohnke told anyone else to arrive 15 minutes early. (Hall Dep. at 33.) She did not have any interaction with any other security officers at other sites. (Hall Dep. at 99.)

McCombs testified similarly that Bohnke told him the day he was hired that he needed to arrive 15 minutes before his shift began and that he was not permitted to put this information on his time record. (McCombs Dep. at 61-62, 117.) On the other hand, McCombs testified that he never had any discussions with any of his supervisors other than Bohnke about having to report to work 15 minutes early. (McCombs Dep. at 107.) And when McCombs became a supervisor, he never told Hall or any of his other employees that they need to report to work 15 minutes early. (McCombs Dep. at 35-37, 107-08, 109, 115-16; Hall Dep. at 24.) McCombs had no interaction with security guards at other sites. (McCombs Dep. at 105.) Thus, Defendant contends that, despite the assertions made in Plaintiffs' declarations, their actual claim is that Guardsmark's written policies required them to arrive at their shift on time, but Katie Bohnke told them to arrive 15 minutes early and not to put this information on their time records.

With respect to post-shift work, McCombs testified that he was aware that Guardsmark's policy was that security guards were not supposed to stay after their shift was over and they were properly relieved and that he ...


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