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Thomas Ware, Lance Wyss, Christian Zaragoza, Jeffrey v. T-Mobile Usa

October 2, 2012

THOMAS WARE, LANCE WYSS, CHRISTIAN ZARAGOZA, JEFFREY FITE, DAVID SCOTT, AND JOSHUA CALLIS, ON BEHALF OF THEMSELVES AND ALL SIMILARLY SITUATED INDIVIDUALS, PLAINTIFFS,
v.
T-MOBILE USA DEFENDANT.



The opinion of the court was delivered by: Judge Trauger

MEMORANDUM AND ORDER

This federal wage and hour suit involves defendant T-Mobile USA's ("T-Mobile") alleged policies and practices with respect to its overtime compensation of hourly employees at its call centers nationwide.*fn1 The named plaintiffs are former hourly employees who worked at T-Mobile's call centers in Nashville, Tennessee and Colorado Springs, Colorado. The plaintiffs allege that they performed uncompensated work prior to the commencement of their shifts and during their unpaid meal breaks. They also allege that T-Mobile underpaid employees by failing to include certain required payments in the regular rate of pay when it calculated overtime. The plaintiffs claim that, by failing to compensate employees for pre-shift work and work performed during unpaid meal breaks and by miscalculating the regular rate of pay, T-Mobile violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq.

In a Memorandum Opinion issued on August 28, 2012, the court conditionally certified a nationwide class of all current and former employees who worked as Customer Service Representatives,*fn2 Retention Representatives, Technical Support Representatives, Financial Service Representatives, Financial Care Representatives, or in related occupations at any of TMobile's call centers since December 5, 2008. (Docket No. 106, at 17.) The Memorandum Opinion also ordered the parties to confer and attempt to submit agreed-upon-notice and consent forms within 20 days from the date of the accompanying Order. (Id. at 19.) That deadline has since passed, with the parties unable to reach an agreement concerning the contents of the aforementioned forms. The parties have asked the court to resolve the pending dispute.

Specifically at issue here are the contents of the consent form that will be mailed to putative opt-in plaintiffs. T-Mobile has filed with the court a proposed consent form in which opt-in plaintiffs are required to specifically select the claims he or she wishes to assert. (Docket No. 108, Ex. B.) The form contains the following format:

CONSENT TO BECOME PARTY PLAINTIFF

I represent that I have worked as a Customer Service Representative, Customer Service Representative II, Retention Representative, Technical Support Representative, Financial Service Representative, Financial Care Representative, or in a related occupation at one of TMobile's call centers since December 5, 2008.

1. Payroll Practices Claim: By signing directly below, I assert a "payroll practices claim." I authorize the filing and prosecution of an action in my name, on my behalf and on behalf of others similarly situated, for unpaid overtime wages, liquidated damages and all other relief provided under the law.

__________________ SIGNATURE

2. Off-the-Clock Claim: Between December 5, 2008 and [sic] present[,] I have performed unpaid "off-the-clock" work at T-Mobile, before clocking into the timeclock at the beginning of my shift and/or during my unpaid meal period.

Yes ___ No ___ (If "Yes" only) By signing directly below, I assert an "offthe-clock claim." I authorize the filing and prosecution of an action in my name, on my behalf and on behalf of others similarly situated, for unpaid overtime wages, liquidated damages and all other relief provided under the law.

__________________ SIGNATURE

3. My Contact Information: ____________________

PRINT NAME ____________________ STREET ADDRESS CITY, ...


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