Davis v. TTEC Healthcare Solutions, Inc.
1:18-cv-03098
D. Colo.Jul 3, 2019Background
- Plaintiffs Beattie and Houston filed an FLSA collective action alleging unpaid overtime for Customer Service Representatives; numerous opt-in plaintiffs joined.
- Defendants previously prevailed in compelling arbitration as to Beattie and Houston; later moved to compel arbitration for 78 opt-in plaintiffs.
- Plaintiffs moved for conditional certification of a collective class of all current/former C.S.R.s who worked for Defendants on or after December 3, 2015; proposed notice and consent forms were submitted.
- Defendants opposed conditional certification only on grounds that arbitration agreements preclude notice and that the recoverable period should be limited to three years before the Court’s order (not the complaint filing date).
- The Court applied the two-step Thiessen notice-stage standard, found substantial allegations of a common policy or plan, granted conditional certification, and approved Plaintiffs’ proposed notice (with electronic notice allowed).
- The Court ordered Defendants to produce contact information for employees who worked as C.S.R.s from July 3, 2016 to July 3, 2019; it granted Defendants’ motion to compel arbitration for 55 opt-ins (records show agreements) and denied without prejudice as to others lacking agreement records.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Conditional certification under FLSA (notice stage) | Plaintiffs: substantial allegations show putative class subjected to a common policy; notice should issue to class as defined (since Dec. 3, 2015) | Defendants: arbitration agreements mean notice should be denied; or at least notice period should be limited to three years before the Court’s order | Granted conditional certification; arbitration agreements do not bar sending notice; notice period limited to employees from July 3, 2016 to July 3, 2019 |
| Scope and method of notice | Plaintiffs: may use mail, email, text, website and proposed consent forms are acceptable | Defendants: restrict notice methods; prohibit some communications; require additional disclosures (e.g., risk of adverse cost awards) | Court approved Plaintiffs’ proposed notice and allowed email/text/phone; rejected Defendants’ restrictions and cost-warning requirement |
| Equitable tolling of FLSA limitation period | Plaintiffs: equitable tolling warranted because of arbitration briefing delay, so class start date Dec. 3, 2015 | Defendants: do not consent to tolling; argue tolling not warranted | Court declined equitable tolling; limited contact list window to July 3, 2016–July 3, 2019 |
| Motion to compel arbitration for opt-in plaintiffs | Plaintiffs: many opt-ins did not sign arbitration agreements; so cannot be compelled | Defendants: produced records showing 55 of 78 opt-ins signed agreements; all who signed should be compelled | Court granted motion as to 55 opt-ins with agreements; denied without prejudice as to others for which Defendants have no agreement records |
Key Cases Cited
- Thiessen v. General Elec. Capital Corp., 267 F.3d 1095 (10th Cir.) (describes two-step FLSA collective-action certification process and notice-stage standard)
- Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165 (1989) (district courts have broad discretion to authorize notice to potential collective-action members)
- Impact Energy Res., LLC v. Salazar, 693 F.3d 1239 (10th Cir.) (equitable tolling in Tenth Circuit is granted sparingly and requires active deception)