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Wesley v. Experian Information Solutions, Inc.

United States District Court, E.D. Texas, Sherman Division

June 25, 2018

RICKEY WESLEY, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED
v.
EXPERIAN INFORMATION SOLUTIONS, INC.

          MEMORANDUM OPINION AND ORDER

          AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE

         Pending 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.

         BACKGROUND

         Plaintiff 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 (“FLSA”).

         Because 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 were assured

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.

         (Dkt. #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 standby time.

(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.

         Plaintiff 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.

         Plaintiff 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.

         On 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).

         LEGAL STANDARD

         Section 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 ...


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