United States District Court, D. Maryland
L. Hollander United States District Judge
Michael Pooner filed a collective action against his former
employer, Mariner Finance, LLC (“Mariner”), as
well as Joshua Johnson, president and chief executive officer
of Mariner, and Michele Strohm, Assistant Vice President of
Mariner. ECF 1 (the “Complaint”). He alleges that
defendants failed to compensate him for overtime, in
violation of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq.;
the Maryland Wage and Hour Law, Md. Code (2016 Repl. Vol.,
2017 Supp.), § 3-401 et seq. of the Labor &
Employment Article (“L.E”) (“MWHL”);
and the Maryland Wage Payment and Collection Law, L.E. §
3-501 et seq. (“MWPCL”). In addition to
the unpaid overtime wages, plaintiff seeks “liquidated
and statutory damages pursuant to the FLSA, MWHL, and
MWPCL” as well as attorneys' fees and costs.
Id. ¶ 2.
pending is plaintiff's motion for conditional
certification of a collective action (ECF 17) (the
“Motion”), supported by several exhibits. ECF
17-1 to ECF 17-9. Specifically, Pooner seeks conditional
certification under the FLSA of “a nationwide class of
all account representatives and customer service
representatives employed by Mariner and any of its related
affiliates, from the three year period preceding the date of
the filing of this Motion (December 3, 2015) through the date
that this Motion is granted, who have worked for Mariner as
an account representative or customer service
representative.” ECF 17 at 9 (internal footnote
omitted). Defendants oppose the Motion (ECF 20), supported by
exhibits. ECF 20-1 to ECF 20-4. Plaintiff replied. ECF 23.
Motion is fully briefed, and no hearing is necessary to
resolve it. See Local Rule 105.6. For the reasons
that follow, I shall deny the Motion, without prejudice.
June 2016 through April 9, 2018, Pooner was employed by
Mariner, a personal finance company. ECF 1, ¶ 20. He
worked as an account representative in Maryland at branches
located in Pikesville and Woodlawn. ECF 1, ¶¶ 20,
23. Mariner has at least 118 branches in at least 21 states.
See ECF 17-4; ECF 17-5. According to Pooner, more
than fifty similarly situated employees nationwide have
worked for Mariner in the last three years as account
representatives or customer service representatives, and they
did not receive overtime wages. Id. ¶ 17.
alleges that Johnson, as president and chief executive
officer of Mariner, has complete operational control of the
company and authority over hours worked and amounts paid.
Id. ¶ 14. He also alleges that Strohm, the
company's assistant vice president, is responsible for
informing all Mariner employees of its employment policies
and practices. Id. ¶ 15. Strohm also allegedly
schedules employee shifts, supervises payroll operations, and
sets and supervises employee clock-in and clock-out
requirements and practices. Id. And, she allegedly
has the authority to hire and terminate Mariner employees.
asserts that he was paid an hourly wage throughout his entire
employment with Mariner (id. ¶ 20), with a
final hourly wage of $16.00. Id. ¶ 22. He also
alleges that all customer service representatives and account
representatives (the “other representatives”)
were paid an hourly wage and were not salaried. Id.
¶ 21. As an account representative, Pooner assisted
loan applicants with the personal loan process. Id.
¶ 24. He also screened applicants, accepted
applications, gathered personal and financial information,
and verified employment of applicants. Id. ¶
25. Further, he assessed applicants' ability to repay a
personal loan, and he was involved in processing liens.
Id. ¶¶ 26, 27.
claims that he and the other representatives were scheduled
to work all of the hours that Mariner's branch locations
were open. Id. ¶¶ 29, 32, 35.
Specifically, Pooner and the other representatives were
scheduled to work from 9:00 a.m. to 5:00 p.m. on Mondays,
Wednesdays, and Fridays; from 9:00 a.m. to 7:00 p.m. on
Tuesdays; and from 9:00 a.m. to 5:30 p.m. on Fridays.
Id. ¶¶ 28, 30, 31, 33, 34, 36. They had a
half-hour break each day. Id. ¶¶ 28, 30,
Pooner and the other representatives were scheduled to work
precisely 40 hours each week (id. ¶ 39), Pooner
alleges that he and the other representatives routinely
worked more than their 40 scheduled hours, without overtime
payment. Id. ¶ 40. For example, if the branch
was behind on collections at the end of the month, he and
other representatives were asked to come into work on
Saturday. Id. ¶¶ 37-38. The Complaint
alleges that three policies operating “separately and .
. . together” caused plaintiff and the other
representatives to “frequently [work]
‘off-the-clock' hours in amounts that are more than
de minimis under prevailing interpretations of the
FLSA.” Id. ¶¶ 41, 50.
plaintiff alleges that each Mariner branch has a
“‘cash box,' in which select personnel are
assigned the duties of accepting cash and check payments
received from borrowers.” Id. ¶ 42. When
borrowers arrived at the branch just before closing, Pooner
and other representatives assigned to the cash box were
allegedly “required to spend time post-closing to
handle the currency and checks, and tend to ‘close
out' duties.” Id. ¶¶ 41-42.
These activities typically required Pooner and other
representatives to remain at the branch for 15 to 30 minutes
after closing. Moreover, Pooner and these representatives
then allegedly had to “drive to the bank to make the
deposit, ” which was 10 minutes away. Id.
¶ 44. According to the Complaint, after closing, Pooner
and other representatives had to spend 30 to 45 minutes on
cash box duties. Id. ¶ 45.
Pooner alleges that defendants imposed “stringent sales
requirements.” Id. ¶ 46. Plaintiff and
the other representatives were “required to generate at
least one loan per day, or generate five (5) loans per
week.” Id. Because of “the pressure to
service customers during normal business hours, ”
including customers who arrived just before closing, and
because of the “sales driven focus, ” plaintiff
alleges that they sometimes had to remain past closing hours.
Id. ¶ 47.
Pooner alleges that defendants maintained a timekeeping
system designed to prevent and deter employees from
accurately reporting overtime hours. Id. ¶ 48.
Plaintiff and the other representatives had to complete and
submit their time sheets online by Friday at the end of each
pay period. Id. However, if a representative entered
hours that would result in overtime payment, the overtime
hours would not be approved. Id. Therefore, they
were required “to deliberately underreport their actual
hours of work.” Id. ¶ 49.
to Pooner, defendants knew that plaintiff and the other
representatives worked more than 40 hours per week, but did
not pay them for the overtime hours. Id. ¶ 51.
Pooner alleges that when he raised the issue of unpaid
overtime with Strohm, she said it was “‘part of
the job.'” Id. ¶ 52. On another
occasion, when Pooner allegedly told Strohm that he had
“to stay over and close loans, ” she replied
“‘good.'” Id. ¶ 53.
Pooner alleges that defendants willfully violated the FLSA by
failing to pay him and other similarly situated employees for
overtime hours. Id. ¶ 54.