BLOOMBERG L.P. (Analytics Department Reps)
This case is brought by a former Bloomberg Analytics Department employee on behalf of all Bloomberg’s Analytics Representatives for Bloomberg’s failure to pay overtime for the hours they work from April 14, 2008 through the present. The case is brought as a class action under New York Labor Law and collective action under the federal Fair Labor Standards Act (FLSA) for Bloomberg’s failure to pay overtime at the rate of time and one half as required by both laws. The lawsuit charges that Bloomberg knew and required Analytics Reps to work on a salary basis but failed to pay them overtime premium pay for the overtime hours they worked.
Specifically, the workers were required to start work before their scheduled start time and had to work during scheduled lunch hours and after their shift ended providing customer support for Bloomberg. The Reps also did work at home without receiving overtime pay. The case also charges that Bloomberg sometimes paid the workers for weekend or holiday shifts using comp time which is not legal for private employers. The case is brought as a class action under New York law for Reps who worked for Bloomberg in the last six years in New York, and as a “collective action” under the FLSA for all Reps who worked in the last three years for Bloomberg anywhere in the U.S. (NY and CA) and who choose to file a “Consent to Sue” form (which can be found below). The case is brought in the U.S. District Court for the Southern District of New York. The case seeks all unpaid overtime wages due at the rate of time and one half, plus an equal amount of liquidated damages under the FLSA and an additional equal amount in liquidated damages under New York law. The case has been filed in the U.S. District Court for the Southern District of New York and is assigned to the Honorable Thomas P. Griesa, U.S. District Judge.
Individuals who worked as Analytics Reps or who worked at other divisions of Bloomberg and who also did not receive overtime pay at the rate of time and one half, are encouraged to call Getman Sweeney (845-255-9370 and ask to speak with Carolyn Mow) to review whether the failure to pay overtime may have been a violation of law. The mere fact that an employer pays an employee a salary does not legally exempt the employee from entitlement to overtime premium pay.
Tentative Settlement Agreement Reached – Posted April 26, 2018
After 5 days of a jury trial, on April 20, 2018, the parties reached a tentative settlement agreement. Under the agreement, the parties are required to keep the terms of the settlement strictly confidential until the filing of the Motion for Preliminary Approval, which is due on June 15th. If the Court grants Preliminary Approval, a notice will be sent shortly thereafter to all class members explaining the terms of the settlement and all class members’ benefits and rights with respect to the settlement.
Pre-Trial Update – posted on March 26, 2018
Judge Denise L. Cote will preside over a two week jury trial in the Southern District of NY (500 Pearl St., Courtroom 18B) in Manhattan, commencing April 16, 2018. There are 3 issues that will be tried to the jury: 1) whether Bloomberg can prove that Help Desk Reps’ primary duty is to administer the business of Bloomberg or its customers, 2) how many hours per week on average the Help Desk Plaintiffs worked off-site, and 3) whether Bloomberg can prove that it had an agreement with Reps that their salary was intended to cover all hours worked, rather than covering their 40 scheduled shift hours with the other hours being uncompensated. The last issue is critical to Bloomberg’s claim that it should be permitted to use the half-time method, rather than the time-and-one-half method, of overtime compensation if the jury finds that Reps are not administratively exempt.
In recent weeks, Judge Cote has issued a critical series of rulings concerning the issues that will be heard at trial. Click here to review the transcript of the 2/22/18 court conference in which Judge Cote ruled that she will calculate damages based on the jury’s findings of off the clock hours plus badge hours, that badge hours are hours worked, and that Bloomberg bears the burden to prove a “clear mutual understanding” with Plaintiffs that the salary was intended to cover all hours worked, rather than covering their 40 scheduled shift hours with the other hours being uncompensated. Click here to review Judge Cote’s denial of Bloomberg’s motion to reconsider her prior fluctuating work week order. Click here to review Judge Cote’s order denying Bloomberg’s motion to decertify the class, as untimely and contrary to the law. On March 16, both sides filed their proposed witnesses and exhibit lists, their proposed jury instructions, proposed jury voir dire, the Joint Pre-trial Order and the Pretrial Brief.
Bloomberg’s Motion for a Stay Denied – Posted November 8, 2017
On November 7, U.S. District Judge Denise L. Cote issued an Opinion and Order denying Bloomberg’s motion to stay the issuance of class action notice pending appeal. Judge Cote approved delaying the notice mailing until after the November 30th mediation, which was agreed to by both parties.
Mediation Scheduled for November 30th – Posted November 6, 2017
This case has been very active since it was reassigned to Judge Cote in August. The decisions approving certification of New York and California classes were followed by a series of other court decisions regarding many of the pending issues in the case.
On November 30, 2017, the parties have scheduled a mediation before private mediator and former U.S. Magistrate Judge Diane Welsh. In this session, the parties will attempt to come to an agreement to resolve the claims in the case without going to trial. Often, if an agreement is not reached on the day of the mediation itself, one is reached in the following days or weeks.
If no agreement is reached, we will move forward in preparing for trial. Since Judge Cote did not rule on the question of whether Analytics Representatives are legally exempt from the requirement to pay overtime at the Summary Judgment stage, that issue will be addressed at trial if the case is not resolved.
Bloomberg has requested permission to file an appeal of the class certification decisions, and in light of that request has also requested a delay in the mailing of notice to the classes. Judge Cote has not yet ruled on Bloomberg’s request for a stay. Also pending is Plaintiffs’ request for mobile application data concerning time stamps for Plaintiffs’ remote log-ins to the Bloomberg system. We are awaiting court decisions on these issues.
Judge Cote Certifies a California Class – Posted September 26, 2017
On September 25th, Judge Cote issued an opinion certifying a class of California-based Analytics Reps working in Bloomberg’s San Francisco call center. The Court has now certified a collective FLSA action, along with New York and California classes of Analytics Reps in this case.
Judge Cote Grants Motion to Certify a New York Class – Posted September 25, 2017
On September 21st District Judge Denise Cote issued an important ruling granting our motion to certify a New York State Class. This means that most Analytics Reps (approximately 1,000) who worked in New York from March of 2008 on are now included in the lawsuit. A notice to all affected members of the New York Class should go out soon. That notice will give people 60 days to opt-out of the case if they do not want to participate. People who want to remain in the case do not have to do anything. The motion for certification of a California class is still pending but we expect a decision soon.
This long-awaited decision means that the case is now moving forward again. As soon as the class “opt-out” period concludes, we expect Judge Cote to rule on the Plaintiffs’ pending summary judgment motion which asks the Court to rule on the question of whether Analytics Representatives are legally exempt from the requirement to be paid overtime by Bloomberg. For several reasons, Judge Cote was obligated to decide the class action motion before deciding our summary judgment motion. To decide the class motion, Judge Cote decided what Reps’ primary duty is (contrary to Bloomberg’s claim that everyone had a different primary duty). She wrote: “Analytics Representatives answer client questions about the Bloomberg Terminal. This is their primary duty.” Decision, p. 21. Judge Cote has now identified the primary duty, as we contended. Thus, Plaintiffs are optimistic about our chances on summary judgment once the class notice period expires.
New Judge Assigned to Case – Posted August 22, 2017
On August 9, 2017, this case was reassigned from Judge Thomas P. Griesa to Judge Katherine Polk Failla, and on August 15, it was reassigned again to Judge Denise L. Cote. We do not know the reason for the second reassignment but at times changes in the schedule of any judge (an upcoming trial for example) may require the reassignment of cases.
The good news is that after a long period of inactivity things are now moving forward. The second reassignment was promptly followed by an August 16 Order from Judge Cote that the parties submit any recent cases that may be relevant to the Motion for Class Certification by August 21, and that the Plaintiffs submit an editable Word version of the proposed class notice. This order indicates that Judge Cote is currently evaluating the pending motion.
Class Certification and Summary Judgment Motions Filed – Posted October 6, 2016
The Discovery period for this case ended on June 30, 2016. During Discovery, Bloomberg provided over 5 million pages of documents to Getman & Sweeney. The Analytics Reps who joined the case also provided any case-related documents they had in their possession. Our attorneys took deposition testimony from six Bloomberg representatives, and Bloomberg’s attorneys took deposition testimony from ten former Analytics Reps.
Since the close of discovery, Getman & Sweeney has filed two major motions on behalf of the Plaintiffs. On September 9, we filed a Motion to Certify the Class under New York and California laws. A decision in our favor would mean that most Analytics Reps who have worked for Bloomberg in New York since April of 2008 or in California since April of 2010 would be included in the lawsuit unless they specifically request to be excluded.
On September 23, we filed a Motion for Partial Summary Judgment, asking the court to rule that Analytics Reps are not covered by exemptions to the overtime provisions of the Fair Labor Standards Act and are thus entitled to overtime pay. A favorable decision on this motion would essentially mean that Plaintiffs have won that part of the case. Because Bloomberg claims: 1) never to have analyzed what the most important job duty Analytics Reps perform is, 2) never determined what the Reps’ primary duty is, and 3) refused to disclose what it considers the Reps’ primary duty to be is, Plaintiffs argue that Bloomberg has effectively waived any claim to the administrative or computer exemptions. Furthermore, Plaintiffs argue that tech support help desk work fails to meet the administrative exemption from overtime pay under every Department of Labor opinion letter and every single Court decision rendered in the U.S.
Bloomberg’s attorneys have the opportunity to respond to these motions, and then we will have the opportunity to reply. All of the briefing should be finished by mid-November. After that, we may have a period of several months as we wait for the Court’s decisions.
Court Approves Collective Action Motion – Updated May 26, 2015
On April 17, 2015, U.S. District Judge Thomas Griesa approved Plaintiffs’ motion to certify the lawsuit as a collective action and mail notice to all Analytics Reps eligible to join the case. Judge Griesa ruled that Bloomberg must provide to Plaintiffs a list of all employees and former employees of the Analytics Department who would be eligible to join the lawsuit, including everyone who has worked within the past three years, along with last known mailing and email addresses. These individuals are eligible to join the case, even if they signed a severance agreement, confidentiality agreement, or any other type of release agreement with Bloomberg.
The Court-Approved Notice is to be mailed and emailed on May 27, 2015.
Eligible individuals who would like to participate in the lawsuit, must fill out a Consent to Sue form and return it to Getman Sweeney by July 27, 2015.
Analytics Dept. Lawsuit Filed Against Bloomberg – Posted on April 17, 2014
The document which starts a lawsuit is known as a Complaint. Click here to read the Complaint in this case.
Answers to Common Questions – Posted April 17, 2014
Do I have to pay to join the case?
No. The attorneys representing plaintiffs are Getman & Sweeney, PLLC and we are handling this case on a contingent basis and will only be paid when we win through a settlement or final judgment.
What claims are covered in this case?
The complaint covers claims for overtime under the federal Fair Labor Standards Act (“FLSA”) and the New York Labor Law. The specific violations claimed are that, by paying a salary alone, the Defendant failed to pay wages at the rate of time and one half to its Analytics Reps. The mere fact that an employer pays a salary does not avoid the requirement to pay overtime at the rate of time and one half.
What work locations are covered by this lawsuit?
The FLSA claims in this lawsuit covers the Analytics workers who worked for Bloomberg anywhere in the U.S. but the New York State overtime claims only cover New York Analytics Reps. If you worked as a Rep in the Analytics Department in California, please call Getman Sweeney at 845-255-9370. If you worked for a different Bloomberg department and you also did not receive overtime pay, please contact Getman Sweeney.
What damages are sought?
Damages sought under the FLSA include back overtime wages, an equal amount of liquidated damages, interest, and fees and costs for each violation. Damages for the state law claims include back overtime pay and liquidated damages, interest. Under the overtime laws, a losing defendant is required to pay for workers’ and fees and costs. The FLSA provides for liquidated damages in an amount equal to the back pay owed and allows claims going back three years from when someone affirmatively joins the case by filing a Consent to Sue form. In New York, state law liquidated damages are in addition to liquidated damages due under Federal Law.
How far back can claims be made?
Under the FLSA, you are entitled to make claims for the period extending back three years from the date your Consent to Sue form is filed in Court. Bloomberg will be entitled to argue that its violations were not willful and that its claims should only be limited to a two-year period preceding the filing of your Consent to Sue form. This two or three year period is called the “statute of limitation.” The state wage claims have different statutes of limitations, going back six years from the date the complaint was filed in Court.
How do I join the case?
To bring claims under the FLSA for back wages and an equal amount of liquidated damages in this action, you must affirmatively join the case by filling out a Consent to Sue form and returning it to Getman Sweeney to be filed with the Court. Even individuals who do not fill out a consent to sue form MAY be part of the state wage claims which are brought as a class action, but only IF the Court ultimately decides that the case may go forward as a class action. Individuals who want to present all of their claims to the Court should fill out the Consent to Sue form and return it to Getman Sweeney to be filed with the Court.
Can I wait to file my Consent to Sue form?
You are not part of the FLSA case until your Consent to Sue form is returned to the plaintiffs’ attorneys and filed. If you delay in filing the consent to sue, part or all of your claim may be barred by the statute of limitations.
Can Bloomberg fire me or take action against me for joining the case?
The law prohibits retaliation for joining an overtime lawsuit. If any employee suffers retaliation, Bloomberg would be liable for at least double the injury caused to the employee, and possibly much more. Notify us immediately if you think any retaliation occurs. Retaliation is rare in overtime cases, because an employer can suffer such serious penalties.
Can Bloomberg or its attorneys contact me about this case?
Employers are generally permitted to contact unrepresented employees about a case, that is, until they have filed a consent to sue as long as they are not deceptive, coercive or do not try to dissuade workers from participating in a case. Even though they are not permitted to do so, employers and their counsel have in many cases tried to discourage employees from joining wage hour cases, which is NOT permissible. And they have tried to get employees to make a statement that can later harm their ability to join a lawsuit or otherwise interfere with their claims. Here are the rules for employer attorney contact with employees about a case: First, employers’ attorneys should advise employees that they should secure their own counsel before speaking with the attorney. Second, Attorneys for the employer may not give employees legal advice. Third, employers’ attorneys are not permitted to give false or misleading information about a case. Fourth, they are required to inform an employee that they represent the company and that the employee is not required to give a statement. You should know that statements that employees give to employers or their lawyers are generally sought to defend the company against the suit seeking back wages the company may owe its employees, including wages owed to the employee giving the statement. Getman Sweeney strongly believes that employees who may have back wage claims should NOT give statements to an employer or its attorneys without receiving legal advice first. If you are asked to provide information or give a statement, you can contact Getman Sweeney immediately. The call is free and confidential.