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Douglas v. Xerox Business Services, LLC

United States Court of Appeals, Ninth Circuit

November 15, 2017

Kristy Douglas; Tysheka Richard, individually and on behalf of all others similarly situated, Plaintiffs-Appellants,
v.
Xerox Business Services, LLC, a Delaware limited liability company; Livebridge, Inc., an Oregon corporation; Affiliated Computer Services, Inc., a Delaware corporation; Affiliated Computer Services, LLC, a Delaware limited liability company, Defendants-Appellees.

          Argued and Submitted July 12, 2017 Seattle, Washington

         Appeal from the United States District Court for the Western District of Washington John C. Coughenour, Senior District Judge, Presiding D.C. No. 2:12-cv-01798-JCC

          Daniel Foster Johnson (argued), Breskin Johnson & Townsend PLLC, Seattle, Washington; Toby J. Marshall and Marc C. Cote, Terrell Marshall Law Group PLLC, Seattle, Washington; Jon W. MacLeod, MacLeod LLC, Seattle, Washington; for Plaintiffs-Appellants.

          Patrick Michael Madden (argued) and Todd L. Nunn, K&L Gates LLP, Seattle, Washington, for Defendants-Appellees.

          Before: Michael R. Murphy, [*] M. Margaret McKeown, and Jacqueline H. Nguyen, Circuit Judges.

         SUMMARY [**]

         Labor Law

         The panel affirmed the district court's summary judgment in favor of the defendants in an action brought by call center workers under the Fair Labor Standards Act.

         Joining other circuits, the panel held that the relevant unit for determining minimum-wage compliance under the FLSA is the workweek as a whole, rather than each individual hour within the workweek. Under the workweek standard, defendants complied with the minimum-wage provision.

          OPINION

          McKEOWN, CIRCUIT JUDGE

         In this appeal, we address an issue of first impression in our circuit regarding the minimum-wage provision of the Fair Labor Standards Act ("FLSA"). Specifically, we consider whether the relevant unit for determining minimum-wage compliance is the workweek as a whole or each individual hour within the workweek. Although the statutory text and context do not conclusively answer this question, we are persuaded by the powerful history of administrative and judicial decisions that have adopted the per-workweek approach since the passage of the FLSA in 1938. We join our sister circuits and embrace the per-workweek measure.

         Background

         Kristy Douglas and Tysheka Richard worked as customer service representatives at call centers run by Xerox Business Services, LLC ("Xerox"). Their main task was to answer incoming calls from Verizon Wireless customers and field questions, but they made outbound calls and also performed call follow-up work. Like any office job, their duties also entailed various administrative tasks, such as attending trainings and meetings and monitoring work-related announcements and email.

         Under Xerox's mind-numbingly complex payment plan, employees earn different rates depending on the task and the time spent on that task. For certain defined activities (such as trainings and meetings), employees receive a flat rate of $9.04 per hour. From there, things get complicated. Time spent managing inbound calls is paid at a variable rate, calculated based on a matrix of qualitative controls (e.g., customer satisfaction) and efficiency controls (e.g., length of calls). The wage ranges anywhere from $0.15 to $0.25 per minute (i.e., from $9.00 to $15.00 per hour). The ...


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