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Gibbs v. TWC Administration, LLC

United States District Court, S.D. California

January 3, 2020

LAURENCE GIBBS, an individual, MATTHEW LUTACK, an individual, BRENT QUICK, an individual, and JESSICA HUENEBERG, an individual, on behalf of themselves and all others similarly situated, Plaintiffs,
TWC ADMINISTRATION, LLC, a Delaware Limited Liability Company, and DOES 1 through 10, inclusive, Defendant.


          Hon. Dana M. Sabraw, United States District Judge

         This case comes before the Court on a motion for summary judgment filed by Defendant TWC Administration, LLC. Plaintiffs filed an opposition to the motion, and Defendant filed a reply. After reviewing the parties' briefs and the record on file in the case, the motion is denied in part and granted in part.

         I. BACKGROUND[1]

         Time Warner provides video, high-speed data, and voice services to customers in the United States. Defendant Time Warner Cable (“TWC” or “Defendant”), a wholly owned subsidiary of Time Warner, directs Time Warner's daily business practices. Plaintiffs Laurence Gibbs, Matthew Lutack, Brent Quick, and Jessica Hueneberg worked as customer service professionals (“CSRs”) and call center leads (“Leads”) (collectively, “agents”) for TWC in San Diego and Ontario, California. Brent Quick was employed as a CSR and Technical Support Professional from 2014 to 2017. (Quick Decl. ¶ 7). Matthew Lutack was employed as a CSR and Technical Support Professional from 2009 to 2016. (Lutack Decl. ¶ 7). Laurence Gibbs was employed from 2011 to 2014, working as CSR and Lead. (Gibbs Decl. ¶ 7). Jessica Hueneberg was employed from 2014 to 2016 as a CSR. (Hueneberg Decl. ¶ 6). In these customer service roles, Plaintiffs' essential job functions included “receiv[ing] high volume of incoming phone calls and respond[ing] to inquiries in a manner which meets high quality, productivity and other [TWC] customer service standards.” (Realin Decl., Exh. 6).

         At all times relevant to this action, Plaintiffs were non-exempt employees. As non-exempt employees, Plaintiffs were entitled to an hourly salary, as well as scheduled meal and rest periods. (Realin Decl., Exh. 20). TWC maintained records for all hours worked for non-exempt employees, (Realin Decl., Exh. 15), and maintained the following policy for regulating meal and rest breaks:

“All employees are to take paid rest breaks, 15 minutes for each four hours of work. Employees must also take an unpaid lunch break of 60 minutes during each shift of 6 hours or more. Employees are never to ‘punch out' and keep working (other wise [sic] known as ‘working off the clock'). Working off the clock is strictly prohibited.” (Realin Decl., Exh. 6).

         To log employee's time, TWC used an electronic timecard system called “Kronos.” (Carr Decl., Exh. 3). TWC's employees were also required to sign a “Timekeeping Policy Acknowledgement, ” in which they agreed to take their meal and rest breaks as scheduled. If an error existed on an employee's timecard, this agreement required the employee to “request timecard corrections in writing from [their] supervisor within one pay period of the date of an error or the date that an error was first noticed.” (Id.).

         Despite this policy, Plaintiffs Quick, Gibbs, and Hueneberg testified to missing meal breaks because their jobs involved fielding high volumes of customer service calls during their shifts. Ms. Hueneberg stated her supervisors told her she “was not allowed to end or transfer a call, ” so she could only take her breaks after finishing phone calls. (Hueneberg Decl. ¶ 16). Similarly, Mr. Quick testified his meal periods would occasionally be delayed past the fifth or sixth hour as a result of extended customer phone calls or team meetings, and because supervisors told him to “wrap up the call and then go on your lunch.” (Realin Decl., Exh. 4, 179:9-14). Mr. Quick also testified to experiencing delayed breaks when his lunch break AUX code was not working properly. (Id. at 111:19-112:5). Finally, Mr. Gibbs testified that his meal and rest breaks were delayed when customer escalations occurred. (Realin Decl., Exh. 5, 71:12-15; 71:21-24; 73:16-74:1). Plaintiffs Gibbs and Lutack stated they never complained to Human Resources about any alleged meal or rest break violations, but Mr. Quick testified to attempting to contact Human Resources about the issue. (Realin Decl., Exh. 5, 69:12-14, 75:9-12; Exh. 2, 55:1-5; Exh. 4, 49:16-50:3). Further, Plaintiffs Quick, Gibbs, and Hueneberg all testified to notifying supervisors of either missed meal or rest breaks. (Id., Exh. 4, 49:16-50:3; Exh. 5 at 66:17-67:3; Exh. 3 at 43:6-8, 43:13-15).

         In addition to the meal and rest period claims, Plaintiffs contend TWC's phone system required off-the-clock work at the start and end of their shifts, as well as when the phone system failed during their breaks. To field high volumes of customer service calls, Plaintiffs needed to take calls as soon as they clocked in. From at least 2013, agents used a phone system called “Avaya.” (MSJ, Exh. 6; King Decl. ¶ 3). This phone system connected to Kronos, so “when an agent logs into the Avaya phone system, he or she is simultaneously clocked into Kronos and on the clock.” (Id.). However, Plaintiffs allege they needed to load their programs before taking phone calls, and thus before clocking in. As such, Plaintiffs allege TWC required off-the-clock work because they spent time loading their programs before clocking in.

         Further, CSRs were evaluated based on several performance metrics, including the amount of “call avoidance”-time spent clocked in but not taking calls. Incidents of call avoidance would negatively impact performance metrics. (Lutack Decl. ¶ 13). Thus, Plaintiffs contend they needed to perform off-the-clock work to avoid being negatively evaluated for “call avoidance” by loading programs before clocking in and by clocking out before logging out of their programs and shutting down their computers. (Lutack Decl. ¶ 15). Moreover, TWC required agents to enter a “break” or “lunch” auxiliary code (“AUX code”) into their phone system to prevent calls from coming through during a scheduled break. However, Plaintiffs allege this code would sometimes not work and they would be unable to clock in at the end of their meal period. (SAC ¶ 57). Thus, Plaintiffs also contend TWC required off-the-clock work for time whenever they were unable to clock in at the end of their meal period.

         Although Plaintiffs claim TWC required this work, TWC's formal timekeeping policy mandated “all non-exempt (hourly) employees [be] paid for all time worked on behalf of the Company, including any overtime worked.” (Realin Decl., Exh. 20). Relatedly, the policy notes: “Off the clock work is strictly prohibited. That means you must not perform work outside of your ordinary work hours unless you are required to do so by the Company.” (Id.). In addition to core job functions, the timekeeping policy included “logging into or out of computer programs or software applications” in its definition of “work time.” (Id.).

         Further, TWC's policy required employees to verify their hours, as recorded in their time sheets on Kronos:

“You are responsible for ensuring that your time submitted in Kronos, TWC's timekeeping system, is accurate. You must be clocked into Kronos prior to performing work and should not clock out of Kronos until you have completed your work for the day. In addition, you should not perform any work during meal or rest breaks.” (Realin Decl., Exh. 20).

         This policy was further reiterated by two emails from supervisors. On December 18, 2015, Supervisor Christina Ridge sent an email re-iterating the company policy, but also reminded employees that “[t]here is no grace period before a scheduled shift or returning from break or lunch” and that they “are expected to launch AAD & Avaya and start taking calls immediately - additional tools can be loaded as you go, and as needed.” (Realin Decl., Exh. 11). Further, the email noted “[a]ny un-coded/not ready AUX usage which prevents receiving a call is viewed as call avoidance and is subject to disciplinary action including, but not limited to, termination.” (Realin Decl., Exh. 11). This email was sent to supervisors and Plaintiff Jessica Hueneberg.

         On April 21, 2016, Supervisor Christina Ridge sent another email to select supervisors, but not including any of the named Plaintiffs, re-iterating that no work should be done off the clock. Further, it instructed that employees could load their tools before their scheduled shift by manually clocking into Kronos “up to 5 minutes before [their] scheduled start of shift.” (King Decl., Exh. 1). She also included a copy of an email from another manager, Ron Collazo, instructing supervisors to ensure their non-exempt employees took their rest and meal breaks and did not load tools before clocking in for their shifts. (Id.). He noted, “[b]oth constitute ‘working off of the clock' and are considered labor law violations.” (Id.).

         On August 28, 2017, TWC updated its customer operations soft phone login/log out process guide to reflect changes to its computer system. This new system permitted CSRs to load programs before logging in. (Realin Decl., Exh. 19). According to this guide, TWC notified employees to not “log into any systems or applications until after [they] have logged [in.]” (Id. at 2). Further, the guide provides for a “5-minute grace period” at the start of employee's shifts, which allowed employees' “schedule attendance metric” to “not be affected” if they “are available to take calls within five minutes after the start of [their] scheduled shift.” (Id. at 2). The guide also provided for the use of the “lunch” status in Avaya, which allowed employees to pause incoming calls during the duration of their break and instructed employees to not log out until after closing all applications and systems. (Id. at 3). However, all named Plaintiffs worked at TWC prior to 2017 and therefore used the Avaya computer system before these changes.

         On April 20, 2017, Plaintiffs filed their Complaint in the Superior Court of California, County of San Diego. On July 26, 2017, Defendant filed a notice of removal and answered Plaintiffs' complaint. (ECF No. 1; ECF No. 2). On August 18, 2017, Plaintiffs filed a second amended complaint. (ECF No. 11, “SAC”). In this complaint, Plaintiffs alleged eight causes of action: (1) failure to provide meal periods; (2) failure to provide rest periods; (3) failure to pay regular and minimum wages; (4) failure to pay overtime compensation; (5) failure to furnish timely and accurate wage statements; (6) failure to pay all wages due upon termination; (7) violation of California's Unfair Competition Law; and (8) violations of the Private Attorney General Act (“PAGA”). (Id.). On September 14, 2017, Defendants filed a motion to stay the action, pending the California Supreme Court's decision in Troester v. Starbucks Corporation. (ECF No. 22). This Court granted the motion to stay on October 24, 2017. (ECF No. 24). On July 26, 2019, Defendant filed the present motion for summary judgment. (“MSJ”, ECF No. 60). On August 14, 2019, both parties submitted a notice of joint stipulation for this Court to consider the motion on summary judgment prior to the motion for class certification. (ECF No. 64). This Court granted the joint stipulation on August 14, 2019. (ECF No. 65).


         Defendant moves for summary judgment on all of Plaintiffs' claims, but focuses on Plaintiffs' first four claims because the remaining claims are derivative of their underlying claims. (MSJ at 3). Therefore, Plaintiffs' meal break, rest break, and off-the-clock (including overtime) claims will be addressed here.

         A. ...

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