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More Bad News for Wage and Hour Class Action Attorneys

February 2013

By: James B. Sherman, Esq. and Phoebe A. Taurick, Esq.

Field technicians for telecommunications providers brought a class action lawsuit against their collective employers, claiming the employers imposed such severe restrictions on what they could do during breaks that they really weren't breaks at all and, therefore, should be compensated. The plaintiffs also alleged that their employers' efficiency rating system compelled employees to work through their breaks without reporting their time. Unfortunately for these plaintiffs (and their lawyers) the United States District Court for the Western District of Wisconsin held that the plaintiffs' experiences varied too much to justify trying the case as a class action.

The defendants in this case utilized a system to monitor efficiency that is not uncommon in many industries; therefore, this case has implications for many employers outside the telecommunications industry. The system challenged by the plaintiffs in this particular case ranked the technicians each month based on efficiency scores. If a technician fell in the bottom twenty percent of the rankings, he or she could be placed on a Performance Improvement Plan, which could lead to discipline or termination. Technicians were expected not to drive "off route" between one job and the next; not to use company vehicles for personal business; not to read, nap, or operate electronic equipment in the vehicles; and not to idle the vehicles for personal comfort, such as to heat or cool the vehicle.

The court held that differences in circumstances such as route location and supervisor made it impossible to generate common answers to the plaintiffs' allegations on a class-wide basis, which was fatal to their attempt to maintain a class action. While these technicians are free to pursue their claims individually, the court's ruling refused to certify a class action covering some 1,300 current and former field technicians working for any of the named defendant telecommunications providers.

Although the court's decision in this case disallowed a class action lawsuit to go forward on behalf of hundreds of employees, the fact remains that individual plaintiffs may pursue claims alleging that they should be compensated for break and meal times if they can prove that they were not sufficiently relieved from work duties during such breaks. The case serves as a reminder to employers that wage and hour lawsuits can involve more than just overtime disputes and that, where meal and other breaks are concerned, if they are not true "breaks" the exposure to liability for double damages, attorney fees, etc. can be huge. This is especially so where large numbers of employees are involved.