Garcia v. Vertical Screen, Inc.

580 F.Supp.3d 79

William GARCIA, for himself and all others similarly situated, Plaintiff,

v.VERTICAL SCREEN, INC., Defendants.

CIVIL ACTION No. 18-4718

United States District Court, E.D. Pennsylvania.

Signed January 13, 2022

Andrew C. Ficzko, James B. Zouras, Ryan F. Stephan, Anna Ceragioli, Megan E. Shannon, Stephan Zouras LLP, Chicago, IL, David J. Cohen, Stephan Zouras LLP, Philadelphia, PA, for Plaintiff.

Jason E. Murtagh, Mark Gulbranson, Maureen Wilson Stampp, Monica L. Simmons, Jacqueline K. Gallagher, Sara E. Hoffman, Larry Besnoff, Buchanan Ingersoll & Rooney PC, Philadelphia, PA, Sadeq M. Khan, Vertical Screen, Inc., Warminster, PA, for Defendants.

MEMORANDUM

ANITA B. BRODY, District Judge

Plaintiffs are former employees of Defendant Vertical Screen who allege that they were deprived of overtime pay. Plaintiff William Garcia, on behalf of himself and all others similarly situated, brings this collective action and class action lawsuit against Vertical Screen for violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. ("FLSA") and the Pennsylvania Minimum Wage Act, 43 P.S. §§ 333.101, et seq. ("PMWA"). I exercise federal question jurisdiction over Plaintiffs’ FLSA claims pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over Plaintiffs’ PMWA claims.

Plaintiffs allege that they were unpaid for overtime under the FLSA and the PMWA because: 1) they spent significant time logging into their computers and the company's timekeeping system that they were not compensated for; and 2) their managers and supervisors engaged in a policy or practice of shaving hours from their timecards without their knowledge.¹

Vertical Screen moves for summary judgment and argues that there is insufficient evidence to sustain either of Plaintiffs’ claims for uncompensated overtime. I will grant in part and deny in part Vertical Screen's motion for summary judgment.

I. FACTUAL BACKGROUND

Defendant Vertical Screen investigates the employment, education, criminal, and reference histories of job applicants for worldwide corporations, institutions, organizations, and government agencies. ECF No. 89-2, at ¶ 1. Plaintiffs in this case are full-time employees and former employees of Vertical Screen whose job was to perform research into job applicants. ECF No. 89-2, at ¶¶ 2-3. William Garcia, the only representative Plaintiff, worked as a researcher from August 26, 2013, through October 2, 2018. Id. at ¶ 31-32. He is joined by sixty-six non-representative Plaintiffs, who also worked as "researchers" or "team leaders" for the company between July 24, 2016 and July 24, 2019. ECF Nos. 33-45. Plaintiffs were full-time, non-exempt employees, and were typically scheduled to work forty hours weekly. See ECF No. 89-7 through 89-17, at ¶ 10. Plaintiffs were paid hourly for up to forty hours of work per week, and time-and-a-half for any hours above forty. ECF No. 89-2, at ¶ 14; ECF No. 89-6, at ¶ 4; ECF No. 89-7 through 89-17, at ¶ 4.

When employees of Vertical Screen arrive at work to begin their shift, they are required to verify their identity by swiping a photo identification card and scanning their retina. ECF No. 89-2, at ¶ 24. Once they pass through security and arrive at their desks, they must complete two steps before they can begin working: first, they must turn on and log into their computer. ECF No. 80, at ¶ 15. Second, they must open Vertical Screen's timekeeping application from their desktop and log into the system, at which point they are "clocked in." Id. Vertical Screen records employee time through an online platform called "Workforce Now" that is colloquially known as "ADP." Id. at ¶ 6. Employees’ time is only measured from when they clock in and out of the ADP system; therefore, time prior to clocking in is not compensated. Id. at ¶ 7-9.

Plaintiffs report having significant trouble with both steps of this log-in process. First, some Plaintiffs experienced lengthy delays and required steps to log into their computers, including:

• Delays of twenty to thirty minutes daily to log into Plaintiff Simmons’ computer. ECF No. 89-25, at pp. 13.

• Five to ten minutes to reconfigure Plaintiff Serota's password every few months, which was time he was told was uncompensated. ECF No. 89-23, at p. 6.

• Twenty-to-thirty-minute delays logging into Plaintiff Lemerise's computer, which occurred around thirty to forty percent of the time he logged in. ECF No. 89-22, at p. 1.

• Hardware and software problems including required updates, reconfiguring passwords, and repeatedly logging in for Plaintiff Allen. ECF No. 89-18, at p. 10.

• Problems logging into the computer and software "more often than not" for Plaintiff Shackleford. ECF No. 89-24, at p. 19.

• Required password changes every few months for multiple Plaintiffs.

ECF No. 89-20, at p. 16; ECF No. 89-21, at p. 27.

Even after successfully logging into their computer, numerous Plaintiffs dealt with additional delays attempting to log into the ADP system that were both frequent and lengthy, including:

• Ten to fifteen minute delays for Representative Plaintiff Garcia logging into ADP at least fifty times. ECF No. 89-19, at pp. 18, 68.

• Trouble logging into ADP between 350 and 400 times for Plaintiff Simmons, and delays of over twenty minutes to log into ADP "almost daily." ECF No. 89-25, at pp. 8, 11.

• Software malfunctioning at least twenty times, and once a month taking longer than ten minutes for Plaintiff Simon to log into ADP after starting her computer. ECF No. 89-26, at p. 19.

• Trouble for Plaintiff Johns logging into ADP for the two weeks when she started. ECF No. 89-21, at p. 27.

• Regular issues for Plaintiff Allen logging into the ADP system. ECF No. 89-18, at p. 10.

The ADP timekeeping system rounds all employee time to the nearest quarter-hour. ECF No. 89-2, at ¶ 10. Therefore, employees who clock in within seven minutes after the hour (for example, at 7:07 am) will be paid as if they clocked in at the hour (at 7:00 a.m.). Id. at ¶ 11-12. Employees who clock in eight minutes after the hour, on the other hand, will be paid as if they clocked in fifteen minutes after the hour. Id. Employees who believe they have worked time that was not recorded in the ADP system can report this to their supervisor or manager, and a correction can be made. ECF No. 80, at ¶ 19. When a correction is made to employee time, it will be reflected on a document called the "ADP Timecard Audit Trail," which will show that an adjustment was made and whom it was made by. Id. at ¶ 21; ECF No. 79, at ¶ 13. Vertical Screen also tracks when an employee scans their ID card and their retina upon arriving to the building, and these times appear on a "Continuum Access Report." Id. at ¶ 27; ECF No. 81, at ¶ 5-6.

II. STANDARD OF REVIEW

Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is "genuine" if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. Id. In ruling on a motion for summary judgment, the court must draw all inferences from the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

The moving party "always bears the initial responsibility of informing the district court of the basis for its motion." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). After the moving party has met its initial burden, the nonmoving party must then "make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. 2548. Both parties must support their factual positions by: "(A) citing to particular parts of materials in the record ...; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). The materials in the record that parties may rely on include "depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1)(A). In opposing a motion for summary judgment, the nonmoving party may not "rely merely upon bare assertions, conclusory allegations or suspicions." Fireman's Ins. Co. of Newark, N.J. v. DuFresne , 676 F.2d 965, 969 (3d Cir. 1982).

The inquiry at summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson , 477 U.S. at 251-52, 106 S.Ct. 2505.

III. DISCUSSION

Plaintiffs bring two distinct claims for unpaid overtime under the FLSA and PMWA: 1) that they performed uncompensated pre-shift work, including starting their computer software and logging into the company's timekeeping system; and 2) that their supervisors reduced their time worked by one to two hours monthly without their knowledge. Vertical Screen argues that Plaintiffs have not brought forth sufficient facts to support these claims. Additionally, Vertical Screen argues that if the claims survive summary judgment, they should be limited to a two-year statute of limitations under the FLSA rather than a three-year statute of limitations.

A. Plaintiffs claim that they are owed compensation for time spent logging into their computers and timekeeping software.

Vertical Screen pays employees based on the time that they clock in and out of the ADP timekeeping...