Reab v. Electronic Arts, Inc.

214 F.R.D. 623, 8 Wage & Hour Cas.2d (BNA) 1196, 2002 U.S. Dist. LEXIS 26374, 2002 WL 32069510
CourtDistrict Court, D. Colorado
DecidedSeptember 24, 2002
DocketNo. CIV. 00-B-1839 (OES)
StatusPublished
Cited by24 cases

This text of 214 F.R.D. 623 (Reab v. Electronic Arts, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reab v. Electronic Arts, Inc., 214 F.R.D. 623, 8 Wage & Hour Cas.2d (BNA) 1196, 2002 U.S. Dist. LEXIS 26374, 2002 WL 32069510 (D. Colo. 2002).

Opinion

MEMORANDUM OPINION AND ORDER

BABCOCK, Chief Judge.

Plaintiffs Katherine Reab, Gail Lee Graham, Steven J. Finger, Jr. and Ian Ronalds (collectively, Plaintiffs) all former or current employees of Defendants Electronic Arts, Inc. (EA) and Origin Systems, Inc. (OSI) (collectively, Defendants) assert claims for violations of the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq., and the Colorado Wage Act, §§ 8-4-101 et seq. Plaintiffs move to certify a collective action under 29 U.S.C. § 216(b) on behalf of themselves and all similarly situated former or current employees. After consideration of the motion, briefs and counsel’s arguments, I grant the motion to certify an FLSA collective action.

I.

Facts

In September 1997, Defendants released for public sale their product “Ultima Online” (UO), a multiplayer on-line fantasy role-playing game in which thousands of players interact simultaneously with each other. Zinser Decl. 113. UO is composed of several distinct worlds known as “shards.” Id. at ¶ 5. The shards are computer servers serving a specific geographical area of users located throughout the real world. Id.

When the game was first released to the public, Game Masters (GMs), paid employees of Defendants, responded to customer queries concerning the use of the game. The GMs’ duties included helping players overcome programming and/or application errors in the game and dealing with cheating players, harassing players, or those who violated the game’s Terms of Service. Pltfs. Ex. 2, pp. 13,15.

Approximately two months after UO was introduced to the public, Defendants initiated a “counselor program.” Defendants actively solicited individuals from among their customer base to work in the counselor program. Ex. 1, p. 20. In response, hundreds of customers volunteered to be counselors. The counselors performed customer-service oriented duties including answering questions from customers concerning operation of the product and dealing with customers having problems playing the game. Pltfs. Ex. 2, p. 19. The counselors, who received no pay for the duties they performed, received compensation in the form of a free game account and occasional free items such as caps.

After formation of the counselor program, the GMs became the paid supervisors of the unpaid counselors. As supervisors, the GMs’ job duties included making sure there were counselors actively taking calls on each of twenty-four shards. If not, the GMs’ role was to provide counselors to take the calls. Pltfs. Ex. 32, doc. 1499. According to Plaintiffs, because the GMs usually were not available twenty-four hours per day, counselors became the equivalent of GMs during times when GMs were not available. See Pltfs. Ex. 4, doc. 877.

Until April 1999, the counselor program operated in a “loose fashion,” Wood Deck, [626]*626¶ 8, with no consistent or mandatory training or signed contracts or agreements between Defendants and the counselors. Id. In April 1999, as the number of persons interested in counselor positions grew, Defendants formally adopted policies and procedures controlling the activities of counselors. Resp. Brief, pp. 4-5. See Amended Complaint, Ex. A, Counselor Handbook.

According to the Counselor Handbook, counselor program participants were required to: 1) complete training in order to serve as customer service representatives in connection with Defendants’ product; 2) work at least three two-hour shifts per week; 3) sign a Terms of Service Agreement drafted by Defendants, Amended Complaint, Ex. A, p. 39-43; and 4) send Defendants a copy of a picture ID. If counselors missed three of their scheduled shifts without notice or excuse, they were terminated from the counsel- or program.

The Terms of Service Agreement contained the following:

These Terms of Service for Counselors is an agreement between you, the applicant (“Counselor”), and Origin Systems, Inc. (“OSI”), of the conditions under which you agree to undertake the task of being a Counselor of OSI’s on-line game, Ultima Online (“UO” or “the Game”)____
The Counselor program is a volunteer service organization; we are here to help others when they run into unusual difficulties during the normal course of play. This takes the form of monitoring the Help Request Queue for calls for assistance from subscribers; responding to those calls; determining if the call should be handled immediately by the Counselor or forwarded to a Game Master, and; following up to insure that the subscriber is satisfied that his request has been dealt with.

Ex. 5, p. 36. Defendants reserved and exercised the right to terminate an individual’s participation in the counselor program for failure to abide by the Terms of Service Agreement.

After counselor program participants served as counselors for a period of time, they were allowed to apply for other jobs in the counselor program, such as senior counselor, assistant senior counselor, shard lead counselor, and seer or elder.

UO customers relied upon the unpaid counselors as well as the paid GMs to provide customer service. GMs would occasionally transfer calls made to them into the counselor queue. Customers also were encouraged to contact either a GM or a counselor for assistance. According to Plaintiffs, in effect, there was little difference between the duties performed by the paid GMs and the unpaid counselors.

Beginning January 1, 2001, Defendants hired paid personnel to train “shoulder-to-shoulder” with the counselors for approximately five months to learn the duties of the counselor position. These duties were identical to the duties they then performed under the label “advisors” beginning in July, 2001. The paid advisors could not be distinguished by customers from the unpaid counselors. Ex. 2, pp. 50, 61.

On May 7, 2001, the unpaid counselors were “[tjerminated to restructure some of their [Defendants’] support.” See Ex. 2, p. 36. Thereafter, the paid advisors took over the duties which had initially been performed by paid GMs and then by unpaid participants in the counselor program.

Based on these circumstances, Plaintiffs allege that the counselor program participants were employees of OSI as defined in the FLSA. According to Plaintiffs, Defendants failed to pay and/or paid compensation owed them below the FLSA mandated minimum wage and did not pay overtime to them for the work and labor they performed for Defendants. See FLSA §§ 206-07.

II.

Law

The Fair Labor Standards Act, 29 U.S.C. § 216(b), provides that:

[627]*627[a]n action ... may be maintained against any employer ... in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

Id.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cox v. TJ Inspection Inc
W.D. Oklahoma, 2025
Doe 1 v. Shanlee Inc
N.D. Alabama, 2024
Wang v. Jessy Corporation
D. Minnesota, 2019
Meyer v. Panera Bread Company
District of Columbia, 2018
Meyer v. Panera Bread Co.
344 F. Supp. 3d 193 (D.C. Circuit, 2018)
Landry v. Swire Oilfield Services, L.L.C.
252 F. Supp. 3d 1079 (D. New Mexico, 2017)
Bustillos v. Board of County Commissioners
310 F.R.D. 631 (D. New Mexico, 2016)
Sharma v. Burberry Ltd.
52 F. Supp. 3d 443 (E.D. New York, 2014)
Ott v. Publix Super Markets, Inc.
298 F.R.D. 550 (M.D. Tennessee, 2014)
Lewis v. Wells Fargo & Co.
669 F. Supp. 2d 1124 (N.D. California, 2009)
Kerce v. West Telemarketing Corp.
575 F. Supp. 2d 1354 (S.D. Georgia, 2008)
Neary v. Metropolitan Property & Casualty Insurance
517 F. Supp. 2d 606 (D. Connecticut, 2007)
Karvaly v. Ebay, Inc.
245 F.R.D. 71 (E.D. New York, 2007)
Central Puget Sound Regional Transit Authority v. Miller
128 P.3d 588 (Washington Supreme Court, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
214 F.R.D. 623, 8 Wage & Hour Cas.2d (BNA) 1196, 2002 U.S. Dist. LEXIS 26374, 2002 WL 32069510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reab-v-electronic-arts-inc-cod-2002.