TD Bank Call Center Reps Win Class Cert. In OT Pay Case

By Lisa Coryell Law360, New York (June 27, 2012, 8:28 PM ET)

A New Jersey federal court on Wednesday conditionally certified a class of TD Bank NA customer service reps accusing the bank of failing to pay them overtime wages, but refused to order the bank to post notice of the action at its call centers nationwide.

David Steinberg claims at least 1,000 TD Bank customer service reps, known as banking specialists, were denied overtime pay in violation of the Fair Labor Standards Act.

In granting the motion for conditional certification, U.S. District Judge Renee Marie Bumb ruled that although the banking specialists hail from two different call center locations — in New Jersey and Maine — and had different supervisors, they share common grievances.

Among those complaints is that they were required to arrive 15 to 30 minutes early to work each day to prepare their computer systems but not allowed to clock-in until their shifts began, and that they were required to attend monthly “Lunch and Learn” training sessions, but were not permitted to record time spent at such sessions.

“Plaintiffs have alleged, and provided factual support for their claim, that banking specialists were similarly situated to one another in that they were subject to unwritten companywide policies that violated the FLSA,” Judge Bumb said.
The judge rejected TD Bank’s argument that there is insufficient evidence of a common, illegal and companywide policy to deny overtime. Records show that the bank specifically instructed employees to bill for the “Lunch and Learn” sessions, the bank argued. And some banking specialists “almost always” clocked in before their scheduled hour, it said.

Many banking specialists did, in fact, record and get paid for all time worked and such individualized issues of proof and defense would make plaintiffs’ claims more suitable for individual resolution, the bank argued.

But in her ruling, Judge Bumb noted that conditional certification requires only that plaintiffs be similarly situated, not identical and that some differences can therefore be tolerated.

The judge agreed to grant court supervised notice in the action, ordering TD Bank to turn over computer lists of names and addresses of banking specialists who worked at all call centers nationwide for the last three years. But the judge refused to order the bank to also provide telephone numbers, email addresses, social security numbers and dates of employment for the potential class members, saying it would be would be excessive and unfairly prejudicial.

Likewise, Judge Bumb refused the banking specialists’ request to extend the opt-in period for class members from the customary 45 days to 120 days, as the banking specialists requested. The judge also nixed a request to post notice of the action at the call centers.

Steinberg, an hourly employee not exempt from overtime, launched the suit in November. Throughout his tenure with TD Bank, he was told to report to work early to “be ready to immediately take customer telephone calls” but was not permitted to clock in early, according to the suit. He and other workers also worked unpaid for the frequent “Lunch and Learn” sessions, the suit says.

In January 2010, TD Bank and Bancnorth Investment Group Inc. agreed to pay $375,000 to resolve claims from a class of roughly 250 stockbrokers who accused the bank of denying them overtime compensation. As part of that deal, TD Bank did not admit it had violated any pay practices laws.

Attorneys for the parties in the current matter were not immediately available for comment Wednesday.
The plaintiffs are represented by Harris L. Pogust and Andrew J. Sciolla of Pogust Millrood LLC.
TD Bank is represented by Kathleen McLeod Caminiti of Fisher & Phillips LLP.

The case is Steinberg v. TD Bank, case number 1:10-cv-05600, in the U.S. District Court for the District of New Jersey.
–Additional reporting by Pete Brush. Editing by Andrew Park.