United States District Court, E.D. Texas, Sherman Division
RICKEY WESLEY, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED
EXPERIAN INFORMATION SOLUTIONS, INC.
MEMORANDUM OPINION AND ORDER
L. MAZZANT, UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff's First Stage Motion for
Notice to Potential Plaintiffs (Dkt. #11). After reviewing
the motion and the relevant pleadings, the Court finds that
Plaintiff's motion is granted.
Rickey Wesley (“Plaintiff or Wesley”) was
employed by Defendant Experian Information Solutions, Inc.
(“Experian”) as a U.S.-based Information
Technology (“IT”) employee. Plaintiff's
responsibilities include troubleshooting and supporting
Experian's global security operations. Experian
classifies Plaintiff as hourly-paid and non-exempt from the
overtime requirements of the Fair Labor Standards Act
Experian must monitor and maintain information technologies
that protect sensitive and confidential information of their
clients, there are times when its employees must answer calls
for issues that arise outside of their regular work hours.
Until October 2017, Experian maintained an On Call, Standby
and Call-Back Time Policy (the “Policy”) that
applied to all US-based non-exempt employees (Dkt. #11,
Exhibit C). The Policy required employees to perform work
beyond their regularly scheduled shifts and assigned tasks
while on either “standby” or “on
call.” Compensation for overtime was different based on
the designation. For “on call” work, employees
Any time that you actually provide assistance - over the
telephone, by logging in to work remotely, or by reporting to
work - is work time for which you will receive your regular
rate of pay or overtime pay, as appropriate.
#11, Exhibit C at ¶ 3.1). For “standby”
work, employees were assured
If, because of critical business needs, you are required to
be more immediately available to begin work than the on-call
standards, these hours would be considered standby time and
you will receive your regular or overtime rate of pay for all
(Dkt. #11, Exhibit C at ¶ 3.3). Accordingly, in contrast
to being compensated for all “standby” time,
these employees were not compensated for all hours spent
“on call”. Rather, they were only compensated for
the time spend acknowledging and responding to a call.
moves for conditional certification as a collective action
under the FLSA. Plaintiff alleges that the putative class
consists of “Defendant's current and former
[non-exempt] U.S.-based IT employees who were paid on an
hourly basis, who worked from [3 years prior to date of
Order] to the present, and who Experian subjected to the
‘On Call, Standby, and Call-Back Time' Policy that
was in effect until approximately October 2017.” (Dkt.
#11 at p. 5). The Court will refer to this defined group as
“Class Employees”. Plaintiff alleges that
Defendant did not pay Class Employees overtime compensation
for hours worked over forty per week in violation of the
FLSA, 29 U.S.C. § 201, et seq.
and four potential opt-in Plaintiffs state that they usually
worked in excess of forty (40) hours per workweek and that
Defendant did not pay them overtime for these excess hours.
Plaintiff and opt-in Plaintiffs further allege that Class
Employees were not compensated for all hours of work,
specifically including those when they were on
“standby” and those when they were merely
“on call” but still subject to
“standby” conditions. (Dkt. #11 at p. 9, Exhibits
J, K, L, M). Defendant classified Class Employees as
non-exempt, hourly employees under the FLSA.
January 3, 2018, Plaintiff filed a complaint as a collective
action pursuant to 29 U.S.C. § 216(b) against Defendant
(Dkt. #1). On April 17, 2018, Plaintiff's filed the
present First Stage Motion for Notice to Potential Plaintiffs
(Dkt. #11). On May 5, 2018, Defendant filed its response in
opposition (Dkt. #16). On May 22, 2018, Plaintiff filed a
reply in support (Dkt. #22). On May 29, 2018, Defendant filed
a sur-reply (Dkt. #23).
207(a) of the FLSA requires covered employers to compensate
nonexempt employees at overtime rates for time worked in
excess of statutorily defined maximum hours. 29 U.S.C. §
207(a). Section 13(a) (1) of FLSA exempts employees occupying
“bona fide executive, administrative, or
professional” positions from the overtime requirements
of the FLSA. 29 U.S.C. § 213(a)(1). “The exempt or
nonexempt status of any particular employee must be
determined on the basis of whether the employee's salary
and duties meet the requirements of the regulations in this
part.” Id. The Code of Federal Regulations
provides a “short test” to classify employees for
the executive or administrative exemptions. An employee can
be classified as an exempt executive if: (1) the employee is
paid a salary of not less than $455 per week; (2) the
employee's primary duty is the management of the
enterprise or a subdivision; (3) the employee customarily and
regularly directs the work of two or more employees; and (4)
the employee has the authority to hire or fire other
employees, or the authority to recommend such actions. 29
C.F.R. § 541.1(a). An employee can be classified as an
exempt administrative employee if: (1) the employee is paid a
salary of not ...