United States District Court, W.D. Wisconsin
DARYL L. MOORMAN and STEVEN M. DYMOND, on their own behalf and on behalf of all others similarly situated, Plaintiffs,
CHARTER COMMUNICATIONS, INC., CHARTER COMMUNICATIONS, LLC, SPECTRUM MANAGEMENT HOLDING COMPANY, LLC, and TWC ADMINISTRATION, LLC, Defendants.
OPINION AND ORDER
WILLIAM M. CONLEY, DISTRICT JUDGE.
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.) 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.
Allegations in Amended Complaint
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.
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.
Solution Channel Agreement Announcement and Explanation of
Arbitration Opt-out Provision for Employees
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).)
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
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
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
(Vasey Decl. (dkt. #47) ¶ 12 (italics added for
emphasis); id., Ex. C (dkt. #47-3).)
following the links described above, an employee who wanted
to opt out, would reach a screen containing the following
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.)
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.)
Solution Channel ...