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Miller v. Wells Fargo Bank, N.A.

United States District Court, E.D. Pennsylvania

March 29, 2018

BEVERLY MILLER, et al, Plaintiffs,
v.
WELLS FARGO BANK, N.A., Defendant.

          OPINION

          Slomsky, J.

         I. INTRODUCTION

         On behalf of themselves and others similarly situated, Plaintiffs Beverly Miller and Roger Plate filed this action against Defendant Wells Fargo Bank, N.A., their former employer. In the Complaint, Plaintiffs allege that Defendant failed to pay Plaintiffs overtime compensation for hours worked over 40 hours within a seven day work week, as required by the federal Fair Labor Standards Act (“FLSA”), the Pennsylvania Minimum Wage Act of 1968, 43 Pa. Cons. Stat. Ann. §§ 333.101, et seq., and the Pennsylvania Wage Payment and Collection Law, 43 Pa. Cons. Stat. Ann. §§ 260.1, et seq. (Doc. No. 1.) Plaintiffs also claim that Defendant required them to work overtime and failed to compensate them for this “off-the-clock” work. (Id. at 2.)

         Before the Court is Plaintiffs' Motion to Conditionally Certify a Collective Action and to Issue Notice. (Doc. No. 46.) They seek conditional certification of a collective action under the FLSA and authorization to issue opt-in notices and consent forms to all hourly-paid banking employees of Defendant who were employed over the past three years. (Doc. Nos. 46, 46-1.)

         On October 2, 2017, Defendant filed its Response in Opposition to Plaintiffs' Motion (Doc. No. 50), and on October 23, 2017, Plaintiffs filed a Reply (Doc. No. 60). On December 21, 2017, a hearing was held on the Motion, and on February 8, 2018 the parties filed supplemental briefs (Doc. Nos. 80, 81, 82).[1] The Motion is now ripe for a decision. For reasons that follow, Plaintiffs' Motion to Conditionally Certify a Collective Action and to Issue Notice will be granted in part.

         II. BACKGROUND

         Plaintiffs Beverly Miller (“Miller”) and Roger Plate (“Plate”) are former hourly-paid employees of Defendant Wells Fargo Bank, N.A. (“Wells Fargo”) in Philadelphia, Pennsylvania. (Doc. No. 47 at 2.)

         From December 7, 2010 to approximately August 16, 2016, Miller was employed by Wells Fargo as a service manager. (Doc. No. 47-2 ¶¶ 3, 4.) She was an hourly-paid employee, earning about $19.85 per hour. (Id. ¶ 12.) As a service manager, Miller's duties included serving as a lead teller, providing training and coaching to other tellers to meet customer service and sales goals, coordinating tellers' schedules, and handling compliance and auditing matters. (Id. ¶ 5.) She was scheduled to work 40 hours per week, like the other tellers, service managers, and personal bankers employed by Wells Fargo. (Id. ¶ 13.) In addition, Miller claims:

It was Wells Fargo's policy that hourly employees, similar to myself, were not to work overtime. However hourly employees were often required to work over forty hours a week. I would routinely and regularly need to stay past the end of my scheduled shift to ensure that tellers balanced out their drawers, or to attend to other tasks needed to close up for the day. It was also common for me, and employees performing similar job tasks, to work through lunch. I rarely took a lunch break. I simply could not complete all of my job requirements if I took a lunch break.
***
Despite it being commonplace for hourly employees to work in excess of forty hours a week, it was the practice of Wells Fargo to deny pre-approval requests for entry of overtime hours into its time keeping system. Management knew working more than forty hours a week was necessary to complete the assigned work, but would not approve the entry of overtime. If you did not have approval from the [district manager], you were not to record overtime hours into the time tracking system.

(Id. ¶¶ 14, 16.)

         Miller alleges that her requests to enter overtime hours were denied by management and in the two instances she did report excess hours, she was reprimanded through the issuance of a “Memorandum of Understanding, ” which was placed in her personnel file. (Id. ¶ 20.) The Memorandum appears to be a written acknowledgement affirming Miller's awareness that overtime required approval of the district manager, the overtime she had entered was not given prior approval, and she would not report overtime without a district manager's approval in the future. (Id. ¶ 21.) She knows of other employees who also received similar Memorandums of Understanding after reporting they had worked over 40 hours during a given work week. (Id. ¶ 20.)

         After receipt of her second Memorandum, Miller informed Joe Mackie about it. Mackie was the branch manager of the Wells Fargo location where she worked. Mackie told her that he too had been reprimanded for approving overtime. (Id. ¶ 22.) Because she feared further reprimand or termination if she attempted to report overtime hours, Miller underreported her hours by approximately 7 hours each week to keep her recorded time at 40 hours per week. (Id. ¶ 25.) In her Declaration-a written statement made under penalty of perjury-submitted in support of the Motion, Miller also alleges:

Based on personal knowledge and observation, I am aware that Wells Fargo employed numerous other hourly-paid retail banking employees who like me worked more than 40 hours per week without being paid all overtime compensation owed.

(Id. ¶ 28.)

         Plaintiff Roger Plate also was an hourly-paid employee of Wells Fargo, earning approximately $21.63 per hour. (Doc. No. 47-3 ¶¶ 1, 7.) From 2010 until December 2012, Plate was employed as a private banker, assisting customers with financial products and services, such as personal loans. (Id. ¶¶ 2-4.) When Plate started working for Wells Fargo, he was assigned to the Collegeville, Pennsylvania branch. (Id. ¶ 6.) Sometime in 2012, he was relocated to the King of Prussia, Pennsylvania branch. (Id.) While working at these locations, Plate was frequently assigned to provide support at other Wells Fargo branches within the area. (Id.)

         Plate worked approximately 50-55 hours per week, sometimes including Saturdays. (Id. ¶ 8.) Like other personal bankers, Plate would arrive at least fifteen minutes prior to the branch's opening and stay until after closing. (Id.) According to Plate, personal bankers at the King of Prussia location would be required to stay after closing on Wednesday evenings to call prospective clients and to work on Saturdays to meet sales goals. (Id.) Plate also claims that “it was not possible to consistently meet sales goals and complete the other assigned tasks of the position without working in excess of 40 hours per workweek.” (Id. ¶ 10.) Plate has personal knowledge that other personal bankers also worked overtime and that management was aware of this situation. As he noted in his Declaration, also submitted in support of the Motion:

The request to work additional hours was not presented as an optional request by the branch managers. I could not meet management's expectations in performing my job duties if I did not work additional hours. I was concerned about negative repercussions to my job if I did not work the additional hours. Nevertheless, I was generally instructed by management to report only 40 hours of work per workweek. On some occasions, when I attempted to report more hours than 40 in a given workweek, I was instructed by my direct supervisor to adjust the timesheet. ...

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