On December 29, 2016, Judge William Conley certified a class of In House Sales Representatives who worked for Wyndham Vacation Resorts in the Wisconsin Dells to proceed as a class action in their claim for unpaid overtime. The Sales Representatives allege that they were subject to a common policy requiring them to punch out of Wyndham’s timekeeping system and continue to perform work “off the clock,” denying them regular and overtime wages.
The Sales Representatives presented testimony to the court that they were instructed by managers to punch out and keep working in order to avoid showing more than 40 hours on the time clock, which would require Wyndham to pay overtime wages. They stated that managers required off-the-clock work by telling Sales Representatives to punch out at a certain time each day and keep working, to punch out once they got close to 40 hours on the clock, and by altering time records to keep recorded hours under 40 for the week.
The class members also used time clock records to show off-the-clock work. When a Sales Representative completed a sale, the billing system created a timestamp. Comparing these records showed Sales Representatives were often clocked out of the time system when they made a sale. Judge Conley noted that this data analysis “corroborated the In House Sales Representatives who testified that managers required them to clock out before conducting back-end meetings” to finish a sale.
To certify the class, the court had to determine whether common questions predominated over the individual defenses Wyndham may have to class members’ claims. Judge Conley noted that each class member’s claim centers on one common question: “whether Wyndham had an unofficial policy or practice of requiring Sales Representatives to work off-the-clock.”
Wyndham argued that because the Sales Representatives identified different ways that they were required to work off the clock, the class members’ claims do not arise from the same course of action. Judge Conley rejected this argument, observing, “while plaintiffs have alleged that managers used several, different methods to deny overtime, the evidence presented…is sufficient for the trier of fact to find that each of the different methods managers allegedly used to require off-the-clock work were all in furtherance of a single, unofficial policy to deny Sales Representatives of otherwise proper overtime compensation.”
The case will now proceed to trial in September 2017 as a class action, on behalf of all individuals employed as In House Sales Representatives during the class period.
Read the full decision here.
The case is titled Bitner, et al. v. Wyndham Vacation Resorts, Inc., No. 3:13-cv-00451-wmc (W.D. Wis.). The Plaintiffs are represented by William E. Parsons, David C. Zoeller and Caitlin M. Madden of Hawks Quindel, S.C. in Madison, Wisconsin, and Paul J. Lukas, Tim C. Selander, and Robert Schug of Nichols Kaster, PLLP in Minneapolis, Minnesota.
Hawks Quindel has offices in Milwaukee and Madison and represents workers in Wisconsin and across the nation. Nichols Kaster, with more than 30 lawyers in offices in Minneapolis and San Francisco, represents employees and consumers in individual, class, and collective action lawsuits throughout the country.