Maryland staffing corporation Aerotek Scientific, LLC (“Aerotek”), allegedly required its employees who worked at one of its call centers in California to arrive at work at least ten minutes before the beginning of their shifts to log into their computers and be at the ready to receive calls at the immediate start of their shifts. While this sounds like a sound customer service practice, Aerotek employee Tamara Pryor alleged that this and other requirements resulted in she and other class members performing pre-shift work without proper compensation.

In Pryor v. Aerotek Scientific, LLC, Case No. CV-10-06575-MMM-AJW, (C.D. Cal. Nov. 15, 2011), the plaintiff brought claims against Aerotek in the Central District of California for the typical litany of state law wage and hour claims, for failure to pay wages due for pre-shift work, failure to pay overtime, failure to provide accurate itemized wage statements, failure to pay wages upon termination, and unfair business practices in violation of California Business & Professions Code Sections 17200 et seq. She further claimed that Aerotek instructed its employees to record only the time they were logged into its telephone system as time worked, although employees also spent time logging into their computer system before they were logged into it. Pryor also claimed that Aerotek required class members to round their start and end times to the nearest 15-minute interval and precluded them from logging into the telephone system before the scheduled start of their shift, which allegedly ensured that the substantial portion of any rounding would be in Aerotek’s favor.

On November 15, 2011, the district court denied certification of the class. In keeping with the growing trend among wage and hour certification decisions, the district court cited Dukes v. Wal-Mart Stores, Inc., 131 S. Ct. 2541 (2011), but denied certification on grounds unrelated to the issues focused upon in that decision. Like its decision in Lessard v. Skywest Airlines, Inc., Case No. 2:11-cv-03769-JHN-VBK (C.D. Cal. Oct. 24, 2011), less than a month earlier, the district court denied certification on the basis that the Rule 23(b) predominance requirement had not been met. The Court concluded that Aerotek’s common time reporting policies were not enough to satisfy the predominance requirement which is “far more demanding” than Rule 23(a)’s commonality requirement. The Court observed that Aerotek’s common time reporting policies would not have had a uniform impact on employees in light of the significant discrepancies in employees’ testimony regarding how early they were told to arrive at work and how long it took them to log into the telephone system. The Court also observed that Aerotek’s rounding practices necessitated individualized inquiries because “even an employee who worked for a few minutes before recording time . . . may have been compensated for the time if the employee rounded his or her total time up at the end of the day.” Accordingly, this precluded reaching a conclusion as to whether, on a classwide basis, employees were underpaid.

The Bottom Line: The Dukes decision is taking hold, at least indirectly. Plaintiffs seeking to assert class claims need to demonstrate a common policy or issue that had a uniform impact on employees that is subject to common proof.

Authorship credit: Dawn Kennedy