A former Southwest customer service representative is headed to trial on her claims that the airline unlawfully failed to pay her for the time it took her to begin and end her work day.
Unpaid pre- and post-shift work is at the center of a wage and hour case before the California Supreme Court. The justices there are trying to sort through how to align the federal Fair Labor Standards Act’s allowance for employers to not pay their employees for those short snippets of time considered “de minimis,” or too small to account for, with the California state law that requires employers to pay their employees for all hours worked.
New Mexico also requires employers to pay their employees for all hours worked along with time-and-a-half for hours in excess of 40 each week. The Southwest lawsuit is being heard in the U.S. District Court for the District of New Mexico. Southwest had tried to get the lawsuit thrown out, arguing that the collective bargaining agreement, which plaintiff Angela Acevedo had signed, controlled the dispute.
Judge Martha Vázquez disagreed May 25, saying that Southwest’s “state law obligations—namely, to compensate its customer representatives for all hours worked and to provide proper overtime compensation,” are nonnegotiable and independent from the obligations agreed to in a CBA.
Unpaid Boot-Up Time
Acevedo worked in Southwest’s Albuquerque, N.M., customer service call center with about 500 other customer service representatives. She says that she was never paid for the time it took to start and end her shifts. She says that finding a desk and starting up the call center computer programs “typically took 15 to 40 minutes” every day and that closing down all of the programs “took between 10 and 20 minutes” every day.
Acevedo’s lawsuit is a collective action, seeking to represent a class of Southwest customer service representatives. The proposed class for the New Mexico state law claim will likely be 500 workers over three years and the FLSA class “could be much larger,” Don Foty of Kennedy Hodges LLP in Houston told Bloomberg Law. He’s one of Acevedo’s attorneys.
Acevedo also brought federal FLSA claims for overtime and unpaid hours. Southwest tried to claim an FLSA exemption allowed for air carriers under the Railway Labor Act, but Vázquez wasn’t convinced. The RLA does indeed provide an FLSA exemption for air carriers, but that’s not the end of the analysis, Vázquez said. There still remains a question of how integral Acevedo’s duties were to Southwest’s air transportation services, she said.
“At this stage of the litigation, however, the Court is not in a position to make that determination,” Vázquez said, denying in part Southwest’s motion to dismiss. Southwest prevailed on getting two state law claims dismissed.
Attorneys for Southwest didn’t immediately respond to Bloomberg Law’s request for comment.
Acevedo is represented by the law office of Daniel Faber in Albuquerque and Kennedy Hodges LLP in Houston. Southwest is represented by Modrall, Sperling, Roehl, Harris & Sisk P.A. in Albuquerque; Ford & Harrison LLP in Atlanta; and Jones Day in Washington.
The case is Acevedo v. Southwest Airlines Co., 2018 BL 186535, D.N.M., No. 16-24, opinion issued 5/25/18.