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Beck v. Oklahoma Gas and Electric Company

United States District Court, W.D. Oklahoma

March 3, 2017

JOHN BECK, DANNY JACKSON, LARRY MUCK, JAMES HARMON, and JIM BEAVERS, Plaintiffs,
v.
OKLAHOMA GAS AND ELECTRIC COMPANY, Defendant.

          ORDER

          VICKI MILES-LaGRANGE UNITED STATES DISTRICT JUDGE

         This case is scheduled for trial on the Court's June 2017 trial docket.

         Before the Court are defendant Oklahoma Gas and Electric Company's (“OG&E”) Motion for Summary Judgment against Plaintiff John Beck, OG&E's Motion for Summary Judgment against Plaintiff Danny Jackson, OG&E's Motion for Summary Judgment against Plaintiff Larry Muck, OG&E's Motion for Summary Judgment against Plaintiff James Harmon, OG&E's Motion for Summary Judgment against Plaintiff Jim Beavers, and plaintiffs' Motion for Summary Judgment, all filed August 1, 2016. These motions have been fully briefed. Also before the Court is OG&E's Motion to Strike Plaintiffs' Response and Objection to the Declaration of Kenneth McKinzie, filed August 29, 2016. On September 19, 2016, plaintiffs filed their response, and on September 26, 2016, OG&E filed its reply. Based upon the parties' submissions, the Court makes its determination.

         I. Background

         Plaintiffs were all employed by OG&E as Local Representatives/Area Servicemen (“Local Reps”) during the pertinent time periods in this case. OG&E is an electric utility company authorized to provide reliable electric service to more than 800, 000 commercial and residential customers in Oklahoma and Western Arkansas. OG&E divides its operations geographically into districts. Plaintiffs worked in the Ardmore District. The Ardmore District is subdivided into zones, which are named for the largest town in the area: Ardmore, Durant, Healdton, Madill, Sulphur, Ada, and Paul's Valley.

         As Local Reps, plaintiffs were responsible for installing, maintaining, and repairing electrical service and metering equipment in their zone. They were also responsible for operating and maintaining electrical distribution facilities and street light systems and representing OG&E through civic engagement. Plaintiffs were “first responders” for OG&E. While working during their regularly scheduled shift and while on-call, they were expected to be the first employee from OG&E to respond to service restoration calls or power emergencies in their zone, such as downed power lines, electrical fires, or storms. This work is sometimes referred to as “trouble calls” or “trouble tickets.”

         As Local Reps, plaintiffs worked a regular schedule Monday through Friday, from 7:00 a.m. until 3:30 p.m. Plaintiffs were on-call for all periods of time outside their regular schedule, from 3:31 p.m. to 6:59 a.m. Monday through Friday and all day on Saturday and Sunday. OG&E's Overtime Policy provides:

Members are not paid for being On-Call. When called to perform work, the member is paid under Call-Out provisions (see section 20.03).
Members On-Call may not be restricted to the point that they are unable to perform most daily activities. However, members assigned to On-Call will be required to respond within a reasonable time as defined by the Business Unit.

         Overtime For Nonexempt Members Policy Handbook, section 20.05, attached as Exhibit 2 to plaintiffs' responses to OG&E's motions for summary judgment. When plaintiffs were sick, on vacation, or when they found another OG&E employee to cover their calls, they were not on-call; however, they were still required to answer their phones, were sometimes called while they were sick, on vacation, or had another employee covering their calls, and would sometimes respond to those trouble calls.[1]

         OG&E's Overtime Policy defines a Call-Out as “a member being summoned to a worksite after that member has left the worksite and prior to the next regularly scheduled workday.” Overtime for Nonexempt Members Policy Handbook, section 10.02.02, attached as Exhibit C to the Declaration of Kenneth McKinzie in Support of Defendant Oklahoma Gas and Electric Company's Motions for Summary Judgment. Plaintiffs were summoned to the worksites after hours when they were on-call and a customer in their zone called OG&E's interactive voice response system (“IVR system”) or the customer service department with a trouble ticket. Customer service or the IVR system would then provide the information about the trouble ticket to the Dispatch Control Center (“DCC”), and DCC would contact plaintiffs on their OG&E issued cell phone. If plaintiffs accepted the trouble ticket, DCC would send the ticket number associated with the call, the location, and the nature of the problem to plaintiffs' computer, called a Mobile Data Unit (“MDU”).[2] There were also times that customers would call plaintiffs directly and did not go through customer service. When customers called plaintiffs directly, they did not get paid unless they actually worked the call. After receiving a Call-Out, plaintiffs would travel to the location and assess the situation. Upon arrival, they would either perform the work necessary to fix the problem or inform DCC that follow-up work was necessary.

         While on-call, OG&E expected plaintiffs to remain sober and fit to report to work and to don appropriate safety clothing before responding to a Call-Out. Plaintiffs were also expected to live within thirty minutes of their assigned zone. Additionally, plaintiffs were expected to respond to Call-Outs within a “reasonable” time - to be in their OG&E truck and driving to the location of a trouble call within a “reasonable” time, which most plaintiffs viewed as within thirty minutes of receiving the call.[3]

         Local Reps are paid on an hourly basis. They are not paid for the time spent waiting on-call and are only paid for the time spent responding to Call-Outs. For Call-Outs, Local Reps are paid a minimum of two hours recorded time at the appropriate daily overtime rate when called from home to the worksite for emergency repair work.

         On July 21, 2014, plaintiffs filed the instant action, asserting claims against OG&E to recover for unpaid wages under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b), for the time they spent on-call. ...


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