- From LexisNexis® Mealey’s™ Daily Legal News.
A Washington federal judge on April 17 denied certification of a class of Comcast Cable Communications Management LLC employees who claim that they are owed pay for work performed prior to the start of their shifts, finding that too many individual issues exist (Karen Ginsburg, et al. v. Comcast Cable Communications Management LLC, No. 11-1959, W.D. Wash.; 2013 U.S. Dist. LEXIS 55149).
Karen Ginsburg and Jessica Walker worked as customer account executives (CAEs) at call centers operated by Comcast.
The CAEs spend most of their time on the telephone with Comcast customers, assisting them with inquiries. Ginsburg and Walker, like all CAEs, were hourly paid employees. However, they claimed that all CAEs often arrived at work prior to the scheduled start of their shifts in order to perform tasks preliminary to answering customer phone calls. They claimed that they received no pay for this work in violation of the Washington Minimum Wage Act and other Washington wage-and-hour laws.
Ginsburg and Walker filed a class complaint against Comcast in the U.S. District Court for the Western District of Washington. They sought to represent more than 2,000 CAEs who have worked at Comcast’s Washington call centers since October 2007.
Judge Richard A. Jones denied the motion for class certification. “What the court does conclude, based on the anecdotal evidence, is that many of the questions critical to the resolution of class members’ claims are not susceptible of classwide proof. For example, Plaintiffs contend for the first time in their reply brief that the ‘common issue that predominates in this litigation was whether the “first principal activity” of the CAE workday is the required act of logging into their computers.’ . . . Plaintiffs assert that the answer to this question ‘will be the same for all class members,’ but the anecdotal evidence leads the court to conclude otherwise. The anecdotal evidence reveals that some individuals start work by logging into their phones or with some other act. It also reveals that some individuals log into their computers but do not start work. Plaintiffs suggest no classwide proof that would establish what act marks the beginning of compensable work, and the evidence suggests that the answer varies for every class member,” the judge wrote, adding that “[o]ther individualized questions abound.”
Andrew C. Ficzko, James B. Zouras and Ryan F. Stephen of Stephan Zouras in Chicago and Beth E. Terrell, Erika L. Nusser and Jennifer R. Murray of Terrell, Marshall, Daudt & Willie in Seattle represent the plaintiffs.
Jeffrey A. Hollingsworth and Chelsea D. Peterson of Perkins Coie in Seattle represent Comcast.