Bitner v. Wyndham Vacation Resorts, Inc.

301 F.R.D. 354, 2014 WL 3698850, 2014 U.S. Dist. LEXIS 101589
CourtDistrict Court, W.D. Wisconsin
DecidedJuly 25, 2014
DocketNo. 13-cv-451-wmc
StatusPublished
Cited by19 cases

This text of 301 F.R.D. 354 (Bitner v. Wyndham Vacation Resorts, Inc.) is published on Counsel Stack Legal Research, covering District Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bitner v. Wyndham Vacation Resorts, Inc., 301 F.R.D. 354, 2014 WL 3698850, 2014 U.S. Dist. LEXIS 101589 (W.D. Wis. 2014).

Opinion

OPINION & ORDER

WILLIAM M. CONLEY, District Judge.

In this putative class and collective action, plaintiffs Thomas Bitner and Toshia Parker allege defendant Wyndham Vacation Resorts, Inc. (“Wyndham”) maintained policies that required its sales representatives to work off the clock and in excess of 40 hours per week without proper minimum wage and overtime compensation in violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”) and Wisconsin law. Plaintiffs now ask the court to certify conditional classes of current and former Wyndham In-House Sales Representatives and Discovery Sales Representatives, pursuant to 29 U.S.C. § 216(b). (Dkt. #36.) Because plaintiffs have made the modest factual showing necessary for conditional certification, the court will grant the motion and authorize notice subject to the revisions noted in the opinion below.1

BACKGROUND

I. Parties

Defendant Wyndham Vacation Resorts, Inc. is a Delaware corporation with its principal place of business in Orlando, Florida. Wyndham is in the business of developing, marketing and selling vacation ownership interests. To conduct that business, Wyndham employs sales representatives, whose primary job duty is to sell timeshare properties and/or promotional packages for such properties. All sales representatives share that same central duty, but their specific involvement in the process differs. In-House Sales Representatives give tours to existing timeshare owners each morning and set up back-end meetings, to occur later the same day, in order to sell property and packages. Discovery Sales Representatives make sales to potential buyers during sales meetings, which occur after the buyers return from tours with In-House or Front Line Sales Representatives.

The named plaintiffs in this case are Thomas Bitner, who worked for Wyndham as both an In-House Sales Representative and a Front Line Sales Representative,2 and Tos-hia Parker, who worked for Wyndham as a Discovery Sales Representative. Both worked from Wyndham’s only Wisconsin facility, which is located in the Wisconsin Dells.

II. Alleged Policies

Wyndham classifies all sales representatives as non-exempt from overtime and minimum wage, and it pays them a recoverable hourly draw of $7.25 per hour plus commissions on their sales. When representatives earn a commission, the hourly draw previously paid out is recovered from that commission. Wyndham sales representatives are required to keep track of their own hours and to get approval for all potential overtime hours before they work more than 40 hours in a pay period.

Plaintiffs’ case centers on Wyndham’s alleged policy of preventing its In-House and Discovery Sales Representatives from recording more than 40 hours in a week. Pursuant to this policy, plaintiffs allege that they are required to clock out of Wyndham’s timekeeping system: (1) at specific times in the day (for instance, after In-House Sales Representatives complete their morning tours); and (2) whenever they are nearing 40 hours on the clock.

As one of approximately 25 In-House Sales Representatives at the Wisconsin Dells [357]*357facility, plaintiff Thomas Bitner avers that his primary duty was to sell Wyndham timeshare ownership to existing timeshare owners. To make sales, he gave tours of Wynd-ham properties each morning, conducted “back end meetings” in the afternoon and evening, and frequently followed up with prospective buyers by phone. He avers that he clocked in during his morning tours but was not on the clock for back-end meetings, follow-up phone calls with customers, attending breakfasts and weekend events with customers and attending meetings and trainings. As a result, Bitner avers that he routinely worked in excess of 40 hours per workweek but almost never clocked in for more than 40 hours.

Bitner further avers that his managers (Tom Delmore, Christine Kwitek, Lance Tinsely and Kyle Mayes) instructed him to clock out after his last morning tour and observed him performing off-the-cloek work afterward, including the back-end meetings, phone follow-ups, and customer events. Based upon his personal experience, he also believes that the requirement of clocking out after morning tours applied equally to all In-House Sales Representatives.

As one of approximately eight Discovery Sales Representatives at the Wisconsin Dells facility, plaintiff Toshia Parker avers that her primary job duty was to sell timeshare properties and promotional packages. In that capacity, she met with customers in a sales office on Wyndham premises after they returned from sales tours.

Parker further avers that her managers (Mike Wilder and Brian Washington) instructed her that she could not be clocked into Wyndham’s time clock for more than forty hours per week. Pursuant to those instructions, she regularly worked off the clock in the presence of her managers, without overtime pay and, in some eases, without minimum wage. Finally, she believes other Discovery Sales Representatives were subject to the same policy, because they were also supervised by Wilder and Washington.

Defendants deny ever having any such policies. They state that Wyndham’s actual policy unequivocally requires all employees, including sales representatives, to report their hours accurately, and that Wyndham pays for all hours worked. Accordingly, Wynd-ham argues that any deviation from that policy is based on individual circumstances, such as employee or supervisor misconduct, rather than on a uniform policy, and that this case is not appropriate for collective treatment.

OPINION

I. Legal Standard for Conditional Certification

A. Two-Step Framework

Section 216(b) of the FLSA authorizes plaintiffs to bring a “collective action” against an employer to recover unpaid compensation for themselves and on behalf of “other employees similarly situated.” 29 U.S.C. § 216(b). Unlike a typical class action lawsuit, where a putative class member not wishing to participate must “opt out” under Federal Rule of Civil Procedure 23, a collective action under the FLSA requires putative class members to “opt in” by filing a written consent to join the action. Woods v. N.Y. Life Ins. Co., 686 F.2d 578, 579-80 (7th Cir.1982). In light of this requirement, most courts, including this one, apply a two-step approach to certifying collective actions. Austin v. CUNA Mut. Ins. Soc’y, 232 F.R.D. 601, 605 (W.D.Wis.2006).

The first step is conditional certification. Although conditional certification is not a “mere formality,” Berndt v. Cleary Bldg. Corp., No. 11-cv-791-wmc, 2013 WL 3287599, at *7 (W.D.Wis. Jan. 25, 2013), a plaintiff need only make “a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law.” Austin, 232 F.R.D. at 605 (quoting Young v.

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301 F.R.D. 354, 2014 WL 3698850, 2014 U.S. Dist. LEXIS 101589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bitner-v-wyndham-vacation-resorts-inc-wiwd-2014.