Off-the-clock cases involving call centers have been in vogue for a number of years despite lingering issues regarding whether they can truly be resolved on a class-wide basis. A recent case from the District of Maryland, Faust v. Comcast Cable Communications Management, LLC, Civil Action No. WMN-10-2336 (July 15, 2014), suggests that they cannot. Further, this case, like other recent cases, suggests that plaintiffs cannot use poor-man's substitutes for expert testimony when they try to do so.
This Faust case does not involve a pact with the devil but, rather, a garden-variety claim that workers at a call center had to log in early and were not paid for the time it took to boot up their computers or to read emails before the start of their shifts. They sought to assert claims under the FLSA and under Maryland law. The court conditionally certified the FLSA class, but only 56 of nearly 1,000 putative class members opted in. The same plaintiffs' attorneys had brought similar claims against the same employer with expert testimony. In this instance, however, they decided to take a different path.
First, they used one of their own attorneys to submit a declaration analyzing the data purportedly not as an expert. They described this testimony as a mere "summary," but the court noted that they purported to analyze the data like an expert, including the making of several key assumptions. It struck the testimony.
Second, plaintiffs used an expert's report from a different case involving a different call center to try to buttress their arguments about the relevance of log-in and log-out times. The court rejected this report both as untimely and irrelevant, as there was nothing to suggest that claimed issues or practices at one call center also occurred at another.
Lastly, plaintiffs submitted a declaration from a law clerk purporting to analyze the times of three employees. The court struck this, too, as not an expert's report and, for that matter, being a poor summary as it related to such a small sample.
After excluding this testimony, the court noted the differences among the putative class members and denied certification. In doing so, the court was plainly unimpressed with the plaintiffs' arguments describing them, in at least one instance, as "somewhat farfetched." Reading between the lines, the court was put off by the lackluster submission and arguments and found little choice but to deny certification.
The bottom line: Plaintiffs cannot obtain certification based on their own counsel's testimony or expert testimony borrowed from other cases.
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