(Photo: John Disney/ALM)

A group of AT&T account executives in New York and New Jersey suing the telecommunications company for unpaid overtime wages were granted final class certification on their federal and state claims, U.S. District Judge Analisa Torres ruled late Thursday.

The suit in the U.S. District Court for the Southern District of New York initiated in 2013 over allegations the account executives that work with local brick-and-mortar retailers to sell AT&T's wireless services were typically on-call seven days a week, beginning as early as 8 a.m. and extending as late as 10 p.m. While receiving a base salary plus a commission based on sales, the employees were exempt from overtime pay mandated under the Fair Labor Standards Act, as well as local New York and New Jersey laws.

In 2014, the court conditionally certified the collective action of current and former retail account executives that were eligible from 2010 onward. A group of RAEs, joined as well by national retail account executives, who collectively work with nearly 16,000 local dealers and retail locations, opted in after conditional certification.

Following depositions of the opt-in plaintiffs, the parties moved for certification and, in AT&T's case, decertification on the federal claims, while the other side sought additional certification of state claims.

Pointing to the information gleaned from the testimony of the opt-in plaintiffs, Torres found the claimants to be similarly situated. AT&T argued specifically that the potential class members had varying levels of independence and discretion about parts of their jobs that provided enough distinctions to frustrate the class.

AT&T claimed the account executives had wide latitude in how they handled scheduling and supervision of store visits. As was the case in other claims by the company, Torres found that the testimony of the employees suggested their experiences generally had more in common than not. While they said they had some authority over visits, managers were actively involved in the process, monitoring and overseeing the visits, while having the authority to alter schedules.

Similarly, while the employees had discretion in how they conducted trainings with their accounts, they almost always used materials from AT&T that they modified based on the circumstances. When it came to the use of marketing techniques, like in-store promotions, Torres found the differences to be “minimal and immaterial.” Business plans as well were submitted with generally similar frequencies, and included the same kinds of information.

On the issue of on-call times, AT&T argued the variability in the number of calls the employees were subjected to, from a few a week to everyday, showed a disparate set of experiences. Torres stated that the company was confusing variability in the number of calls with variability in their individual experiences, which were substantially similar.

Torres went on to also certify the state claims, noting that courts in the circuit favor certification of New York classes, if they pass the FLSA tests. As both states' laws have tests that largely mirror the federal counterparts, the court found its previous analysis squared with the New York and New Jersey requirements.

While noting the various class members' jobs are not identical, the distinctions were minor “and concern the degree of supervision exercised over a few discrete job duties that were consistent across the class,” Torres found.

“The distinctions do not, therefore, overwhelm the numerous factual consistencies in class members' job duties and the level of discretion and independent judgment they exercised in performing those duties,” she wrote.

In a statement, AT&T spokesman Marty Richter said the company is reviewing the decision and considering its options.

“We value our employees and we're committed to full compliance with all federal and state laws, including wage and hour laws,” Richter said. “… [W]e look forward to presenting our case on the merits at the appropriate time.”

Mandelbaum Salsburg member Michael Saffer represented the plaintiff side of the proceedings. He said he and his clients were pleased with the judge's decision.

“We feel these class members should have their day in court and have an opportunity to present the evidence for which they're seeking monetary damages,” Saffer said.

AT&T's representation was led by Paul Hastings partner Patrick Shea. He did not return a  request for comment.

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