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James Postiglione, et al v. Crossmark

November 14, 2012

JAMES POSTIGLIONE, ET AL, PLAINTIFFS,
v.
CROSSMARK, INC.,
DEFENDANT.



The opinion of the court was delivered by: Norma L. Shapiro, J.

MEMORANDUM

Plaintiffs allege violations of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., and seek to represent a class of similarly situated individuals pursuant to 29 U.S.C. § 216(b). Before the court are three motions: Plaintiffs' Renewed Motion for Conditional Certification of Collective Class; Plaintiffs' Motion to Compel Answers to Interrogatories and to Compel Production of Documents; and Plaintiffs' Motion for Leave to Amend their motion for class certification. Because neither the original nor the amended proposed class members are similarly situated to the named plaintiffs, these motions will be denied. Furthermore, all of the named plaintiffs other than Postiglione will be dismissed from the action as plaintiffs improperly joined under Federal Rule of Civil Procedure 20.

I. Background

Plaintiffs are current and former employees of defendant Crossmark, Inc. (Crossmark). They include full-time and part-time employees. Defendant Crossmark provides sales, retail merchandising, and inventory management services to retailers and manufacturers of consumer goods. These services are provided by over 12,000 "retail representatives" employed by Crossmark. The retail representatives are divided into different divisions with varying duties, territories, and supervisors. Some teams of retail representatives work only in a particular chain of retail stores but provide inventory and merchandising services for a number of products within those stores. Other teams work in many different retail stores but provide service only for particular brands of products. Still other teams specialize in labor-intensive reorganizations of shelves and products. Generally, retail representatives travel to different retail store locations to perform their job duties. Retail representatives are paid on an hourly basis and are non-exempt under the FLSA.

Plaintiffs, present and former retail representatives for Crossmark, allege that Defendant violated the FLSA by not paying its employees for overtime. In particular, Plaintiffs allege that they were not paid for three categories of time worked. First, some retail representatives had to perform certain administrative tasks in the morning before beginning their work at the retail locations. These tasks included checking the representative's e-mail and confirming his schedule for the day. Similarly, some retail representatives had to perform administrative tasks in the evenings after completing work at the retail locations. These employees had to enter the data they had collected into Crossmark's computer system and report on the tasks they had performed throughout the day. For each employee, the time for these administrative tasks in the mornings and evenings varied from a few minutes to a few hours to complete each day, depending on his particular duties. Plaintiffs also allege that some retail representatives had to load promotional materials or merchandise into their cars in the morning and unload those materials in the evenings. Plaintiffs allege that Crossmark employees were not paid for some or all of the time spent working on these administrative tasks in the mornings and evenings. They contend that Crossmark either discouraged or did not allow its employees to record some or all of their administrative time. Crossmark denies this allegation.

Second, retail representatives were not paid for the time they spent driving to their first assignment or home from their last assignment of the day.*fn1 They were paid for the time spent driving between retail locations. Plaintiffs' position is that the employees' workday begins with the administrative tasks performed at home in the morning and ends with the administrative tasks performed at home in the evening. They argue that all of the employees' driving time throughout the day is compensable. Defendant responds that the morning and evening drive time is not compensable under the FLSA because the administrative tasks need not be performed at home or immediately before or after the employees complete their assignments at the retail locations.

Finally, Plaintiffs allege that at least some retail representatives were not paid for all of the time they spent working at the retail locations. They allege that Crossmark instead paid its employees based on a fixed maximum "budgeted time" or "project time." Crossmark denies this allegation.

Plaintiffs allege that to the extent employees worked more than forty hours a week Crossmark's failure to pay employees for these three categories of time constitutes a violation of the FLSA. Plaintiffs further allege that when these three categories of time are included, even some part-time employees worked more than forty hours a week and are entitled to overtime compensation under the FLSA.

The original complaint in this action listed 31 named plaintiffs. Plaintiffs almost immediately began filing notices that other employees had consented to join the named plaintiffs in a collective action. On June 3, 2011, this court granted Defendant's motion to dismiss and granted leave for Plaintiffs to file an amended complaint. Plaintiffs' initial motion to certify a class was rendered moot by that order. Plaintiffs took this opportunity to add 21 new named plaintiffs, including the 18 individuals who had filed consents to join the collective action. The amended complaint names 52 plaintiffs. Plaintiffs continued to submit consents to join a collective action.

The court allowed minimal pre-certification discovery, including depositions of ten individuals by defendants. Plaintiffs have filed a renewed motion for conditional certification of a collective class. Plaintiffs ask the court to certify a conditional class of all former and current full-time and part-time employees of Crossmark who have been classified as Retail Representatives or Data Collectors at any time within the previous three years. Plaintiffs ask the court to authorize the sending of notices to all these individuals of their right to opt-in to the class. After lengthy briefing and oral argument on the motion, Plaintiffs filed a motion for leave to amend their motion for class certification. Admitting that the members of the originally-proposed class were not similarly situated, Plaintiffs request certification of a narrower class of employees. The amended proposed conditional class would include only those retail representatives employed on a Crossmark Retail Team or a Dedicated Team in only 15 of 41 different departments. There are over 9,000 current employees in those departments working under nearly 300 supervisors. Plaintiffs have also narrowed the proposed conditional class to those persons who were paid to work more than thirty hours a workweek. The amended class would include 31 of the 52 named plaintiffs listed on the current amended complaint.*fn2

Just before oral argument on the conditional class certification motion, Plaintiffs filed a motion to compel discovery. The court stayed briefing on that motion pending determination of the motion for conditional class certification.

II. Legal Standard

Under the collective action provision of 29 U.S.C. § 216(b) of the FLSA, an employee alleging an FLSA violation can bring a suit on behalf of "himself . . . and other employees similarly situated." The statute provides, however, that "[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court."

The Court of Appeals for the Third Circuit has recently issued a pair of decisions clarifying the standards to be applied in deciding whether to certify a class under ยง 216(b). The Court of Appeals has affirmed, but not required, the use of a two-tier analysis. See Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 536 (3d Cir. 2012) ("[In Symczyk] [w]e implicitly embraced this two-step approach, and we affirm its use here."); Symczyk v. Genesis HealthCare Corp., 656 F.3d 189, 192-93 & n.5 (3d Cir. 2011) ("Although this two-step approach is nowhere mandated, it appears to have garnered wide acceptance."). At the first stage, "the court makes a preliminary determination whether the employees enumerated in the complaint can be provisionally categorized as similarly situated to the named plaintiff[s]." Symczyk, 656 F.3d at 192. This "conditional certification" is not really certification of a class under the statute at all. Rather, it is only an exercise of the district court's discretionary power, upheld in Hoffmann--La Roche ...


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