Case Studies

Client:
AT&T

Team:
Partners Tom Gies and
Trina Fairley-Barlow.
Counsel Andrew Bagley and
Chris Calsyn.
Former partner Kendra Miller.

AT&T Mobility knew who to call for complex wage/hour litigation

Challenge:
A nationwide collective action was brought against AT&T Mobility LLC by a former Assistant Store Manager claiming that retail store employees across the country had to work several hours “off-the-clock” each week, including time spent reading and responding to work emails and text messages on smartphones. Notice of this Fair Labor Standards Act collective action was sent to 41,000 AT&T retail employees nationwide, approximately 4,200 of whom became opt-in plaintiffs when the class was initially certified. The principal challenge for the defense was to convince the judge, who had initially certified a class, to change his mind, by persuading him that claims of the various class members were so individualized that continued class treatment was inappropriate.

Solution:
Our trial team developed creative options for our client. Key arguments stressed the lawfulness of AT&T Mobility’s timekeeping and time reporting policies through a strategy that included a novel use of expert testimony. Our discovery efforts informed the court of the wide variety of employment settings and inherently individualized claims of various opt-in plaintiffs. We stressed the practical issues facing employers trying to keep track of employee work-related usage of devices that are principally devoted to personal use. We emphasized the dilemma facing sophisticated employers whose employees choose not to report time purportedly worked away from the worksite, including the very short period of time typically spent in reading text messages or emails on their smartphones.

As in many complex employment law class actions, the defense also required sophisticated approaches to the capture, processing, review, and production of millions of pages of documents. And our innovative approach to discovery resulted in the Court's decision to limit the number of depositions.

Result:
The court agreed. We won a major victory for our client when the court decertified the class. The court’s ruling was precedent-setting as to the standards for class treatment of wage hour claims involving employee use of smartphones away from the worksite. Zivali v. AT&T (S.D.N.Y., 2011)