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Moorman v. Charter Communications, Inc.

United States District Court, W.D. Wisconsin

May 1, 2019

DARYL L. MOORMAN and STEVEN M. DYMOND, on their own behalf and on behalf of all others similarly situated, Plaintiffs,



         Plaintiffs Daryl L. Moorman and Steven Dymond assert claims on behalf of themselves and other similarly situated employees against their employer Charter Communications and related entities, asserting violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and Wisconsin wage payment and overtime laws, Wis.Stat. §§ 103, 104, 109.01. Before the court is defendants' motion to compel arbitration. (Dkt. #27.)[1] Because plaintiffs entered into an enforceable agreement, requiring the arbitration of all disputes arising out of their employment, including the wage and hour-based claims asserted here, and requiring arbitration to proceed on an individual basis, the court will now grant defendants' motion. However, the court will stay this case pending arbitration, rather than dismiss it, finding that plaintiffs have raised a question about the scope of the arbitrable issues, and whether it would cover claims pre-dating the effective date of the arbitration agreement, an issue that the arbitrator will be allowed to reach in the first instance.[2]


         A. Allegations in Amended Complaint

         Plaintiffs Moorman and Dymond are both technicians employed by Charter Communications, Inc., Charter Communications, LLC, Spectrum Management Holding Company, LLC, and/or TWC Administration, LLC (collectively referred to as “Charter” or “defendants”). Moorman's employment with Charter commenced in October 2005; Dymond's employment commenced in April 2014.

         Plaintiffs allege that they were not compensated for at least 15 minutes at the start of each workday spent on the following activities: (1) checking their phones or similar devices for mapping routes to their first assignment of the day; (2) removing or returning equipment to their company vehicle; and (3) and inspecting their vehicle. Plaintiffs also allege that Charter paid them non-discretionary, quarterly bonuses that were not include in their total compensation, resulting in an understatement of their actual, regular rate of pay for purposes of calculating overtime. Plaintiffs assert these allegations on the part of themselves, as well as a putative FLSA collective and Rule 23 classes of technicians who similarly performed work off the clock and were paid overtime without factoring the impact of non-discretionary bonuses into their regular rate of pay.

         B. Solution Channel Agreement Announcement and Explanation of Arbitration Opt-out Provision for Employees

         In an email dated October 6, 2017, Charter announced the launch of Solution Channel to its employees. The announcement was sent by Paul Marchand, Charter's Executive Vice President of Human Resources, to employees' company email accounts. Defendants represent that all employees, including plaintiffs, received the announcement, and include as exhibits emails sent to “Moorman, Daryl L” and “Dymond, Steven M.” (Knapper Aff., Ex. A (dkt. #31-1); Knapper Aff., Ex. A (dkt. #32-1).)

         In part, the announcement explained that “Charter has launched Solution Channel, a program that allows the company to efficiently resolve covered employment-related legal disputes through binding arbitration.” (Knapper Aff., Ex. A (dkt. #31-1) 3.) The announcement further explained that:

By participating in Solution Channel, you and Charter both waive the right to initiate or participate in court litigation (including class, collective and representative actions) involving a covered claim and/or the right to a jury trial involving any such claim. More detailed information about Solution Channel is located on Panorama. Unless you opt out of participating in Solution Channel within the next 30 days, you will be enrolled. Instructions for opting out of Solution Channel are also located on Panorama.

(Id. (underlining added for emphasis).) The announcement included a link to the Solution Channel webpage on Panorama, which is Charter's intranet site accessible to all employees. That webpage included an “Opting out of Solution Channel” section, which also explained that:

If you do not opt out of Solution Channel within the designated time, you will be automatically enrolled in Solution Channel and considered to have consented to the terms of the Mutual Arbitration Agreement at that time. To opt-out of Solution Channel, please click here. In the new window that will open, click Main Menu->Self-Service->Solution Channel.

(Vasey Decl. (dkt. #47) ¶ 12 (italics added for emphasis); id., Ex. C (dkt. #47-3).)

         After following the links described above, an employee who wanted to opt out, would reach a screen containing the following language:

After having carefully considered its components, I am opting out of Solution Channel. By opting out, I understand and agree that I am not required to participate in Solution Channel. I also understand that if I am subject to another arbitration agreement, I will remain subject to that agreement. I am only opting out of Solution Channel by completing this form.

(Id. ¶ 13; id., Ex. D (dkt. #47-4).) The employee could then check a box indicating “I want to opt out of Solution Channel, ” electronically sign his or her name, and save the form. (Id.)

         In response to the court's inquiry about the employees' access to this opt-out process, defendants represented that 9, 091 employees who received the October 6, 2017, email, opted out of the Solution Channel agreement, totally approximately 10% of Charter's employee population. (Id. ¶ 19.)[4]

         C. Solution Channel ...

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