Opinion
MICV2015-1164 137856
06-29-2017
Hayden Goldberg [1] v. EF Education First, Inc.
MEMORANDUM AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT AND CLASS CERTIFICATION
Peter B. Krupp, Justice.
Plaintiff Hayden Goldberg (" Goldberg"), on behalf of herself and all others similarly situated, alleges that defendant EF Education First, Inc. (" EF") misclassified her as an " administrative" employee exempt from the overtime requirements of the Massachusetts Minimum Fair Wage Law. EF moves for summary judgment, arguing that the undisputed material facts demonstrate that it properly classified Goldberg as an exempt " administrative" employee. Goldberg moves for class certification. For the reasons that follow, EF's motion for summary judgment is DENIED and Goldberg's motion for class certification is ALLOWED .
BACKGROUND
The following facts are taken from the Joint Statement of Undisputed Material Facts (" SOF") and accompanying exhibits. Some facts are reserved for discussion below.
EF is " in the business of marketing to teachers in helping them take their students abroad." It sells educational tours to teachers, who recruit paying middle and high school students to go on tours. Goldberg worked for EF as a Tour Consultant (" TC") from November 2012 to July 2014. The TC position is an entry level position that requires no prior work experience. New TCs are generally expected to have a college degree, though one is not strictly required. EF classifies its TCs as administrative employees and does not pay them overtime compensation when they work more than 40 hours per week. Goldberg's starting salary was $45,000 per year, although she had the potential to make as much as $75,000 per year based on EF's bonus structure.
An EF job description for the TC position explains the role as follows:
As an EF Tour Consultant, you will drive the growth of your own territory by selling international student tours to teachers and schools. You will generate new sales opportunities of your own and convert in-house leads from our marketing initiatives. You will ensure repeat sales by building strong relationships and meeting the needs of your customers throughout the entire tour-planning process. Finally, you will harness your customer knowledge and expertise to suggest and implement your own entrepreneurial ideas in order to keep our industry-leading business on the cutting edge.
Goldberg's resume, prepared after she left EF's employment, includes the following description of her TC work:
Execute personal marketing initiatives and research to qualify and generate new sales leads;
Plan, sell, and coordinate educational study abroad tours to administrators and educators;
Strict attention to account maintenance and customer relationship development;
Dramatic increase in sales and customer retention; Focus on growth and development of Global Education Programs and sales opportunities in Indiana territory[, ] consistently surpassing individual and territory sales goals;
Provide streamlined communication between departments for more timely resolutions to on-tour emergencies.
Most of EF's TCs work in regional sales teams assigned to geographic regions in the United States. Each TC is then assigned to a specific territory (a state or part of a state) within their team's region. Each regional sales team is overseen by a sales director who is responsible for managing her team of TCs, including monitoring vacation time and daily work output. The sales director is also responsible for managing her team's budget and the strategy and long-term vision of her sales region, and for ensuring that her team's sales increase from one year to the next and that her TCs are growing their territories.
All TCs use a customer relations management program called " Phoenix." Phoenix manages the TCs' " sales pipeline, " meaning " the different statuses where a customer can fall during their planning time, " monitors " mission critical" deadlines, keeps track of customer feedback, generates tour prices, and monitors when the TC logs in and out. Phoenix also routes potential customers to TCs by automatically sending leads that come in through EF's website to the TC assigned to the territory associated with the lead's zip code. EF's website generates the most leads for potential customers. The next largest source is referrals from other teachers.
TCs are expected to call a certain number of leads during various periods of time. Every TC has a certain number of teachers and students they have to reach in their territory in a given month. TCs are directed at times to work " power hours" when they only call leads. They are also required to work certain shifts or hours at certain times of the year, including being encouraged to work late and skip or stagger lunches, and to attend weekly sales trainings. TCs are expected to make a certain number of outbound calls each day based on " outbound reports" generated by senior TCs. EF monitors each TC's sales productivity, sometimes on a weekly basis.
EF trains its TCs on its " tried and true" process for initial sales calls with potential group leaders. It employs sales trainers who coach TCs on the " steps of sales theory." The trainers provide TCs with documents to help guide the TCs' conversations with teachers, including guidelines, scripts, templates, handouts, fliers, and brochures. The sales trainers also provide training to newly hired TCs and ongoing training aimed at teaching TCs different sales techniques that will help them grow their sales. Ongoing training consists of weekly team meetings, periodic group sessions, and one-on-one meetings.
TCs do not control the initial pricing of a trip. Instead, TCs gather information from a teacher about what type of trip he or she is interested in taking and enters that information into Phoenix, which then generates a price quote based on the information entered. Once a price is generated, TCs can only modify the price to a limited degree (e.g., by adding optional excursions or offering certain small discounts). Otherwise, they must obtain prior approval from a sales director or other manager.
EF has an advertising department that handles marketing initiatives and a business development team that works with teachers who travel with competitors to try to convince them they should be traveling with EF. EF provides TCs with pre-generated promotional materials such as brochures on destinations and guides for how teachers can best recruit students. Others at EF (not TCs) create tour information, and the proposals TCs send to teachers are largely " pre-generated" except for a few items (e.g., price; sample meals). TCs do not design or create the tours, though they can offer pre-priced add-ons (e.g., insurance or side trips to historic sites). EF has a separate team that handles requests for totally customized tours, which are fairly rare.
In her role as a TC, Goldberg was supposed to develop a strategic plan to achieve higher sales. She had some autonomy in deciding how to go about growing her territory and in deciding to which educators she wanted to pitch tours. Using the internet and EF's database, Goldberg investigated schools to find sales leads. She used information like school size and affluence to qualify new sales leads and prioritize who she would contact and how she would speak to them.
Goldberg would start her sales calls to teachers using EF's script, gathering information about the teacher's interests and needs; but would go off-script to assess and discuss what tours might fit those specific interests. As part of her work as a TC, Goldberg provided advice to her teacher clients regarding strategies for selling tours to students; fielded questions from teachers about upcoming trips (e.g., what clothes to pack, and passport and currency issues); fielded calls from teachers when issues came up during trips; and, with the help of other EF team members, worked to find solutions to those issues or offered compensation to address or resolve problems. During her deposition, she described the TC role as including sales, account management, and customer service.
Goldberg filed this case in March 2015. She set out a single count, claiming that by classifying all TCs as exempt from overtime, EF was violating the Massachusetts Maximum Fair Wage Law, G.L.c. 151, § 1A. EF has moved for summary judgment. Goldberg has moved for class certification.
DISCUSSION
I. Summary Judgment
EF moves for summary judgment on the merits of plaintiff's claim. For the following reasons, there exist material disputes of fact that preclude entry of summary judgment on the merits.
A. The Applicable Standard
Summary judgment is proper where there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c); Barrows v. Wareham Fire Dist., 82 Mass.App.Ct. 623, 625, 976 N.E.2d 830 (2012), citing Cassesso v. Commissioner of Corr., 390 Mass. 419, 422, 456 N.E.2d 1123 (1983). The party moving for summary judgment " need not prove that no factual disputes exist, only that there is no genuine dispute of material fact." Norwood v. Adams-Russell Co., 401 Mass. 677, 683, 519 N.E.2d 253 (1988). The moving party bears the burden of demonstrating the absence of evidence to support the nonmoving party's claims. Flesner v. Technical Commc'ns Corp., 410 Mass. 805, 817, 575 N.E.2d 1107 (1991). " [A] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates . . . that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991).
If the moving party asserts the absence of any triable issue, the nonmoving party must respond with specific allegations adequate to establish a genuine issue of material fact. Barron Chiropractic & Rehab., P.C. v. Norfolk & Dedham Group, 469 Mass. 800, 804, 17 N.E.3d 1056 (2014), citing Drakopoulos v. U.S. Bank Nat'l Ass'n, 465 Mass. 775, 777-78, 991 N.E.2d 1086 (2013) and Pederson v. Time, Inc., 404 Mass. 14, 16-17, 532 N.E.2d 1211 (1989). " Bare assertions made in the nonmoving party's opposition will not defeat a motion for summary judgment." Id., citing O'Rourke v. Hunter, 446 Mass. 814, 821, 848 N.E.2d 382 (2006).
B. The Regulatory Framework
Under the Massachusetts Minimum Fair Wage Law, an employer must pay its employees for overtime unless, as is relevant here, the employee is an " administrative" employee. G.L.c. 151, § 1A. While the statute does not define " administrative, " Massachusetts Department of Labor regulations define the term to " have the same meaning as set forth in" the federal regulations promulgated under the Fair Labor Standards Act (" FLSA"). 454 C.M.R. § 27.03(3).
The FLSA regulations, which are found at 29 C.F.R. § 541, define an " administrative" employee as an employee:
(1) Compensated on a salary or fee basis at a rate of not less than $455 per week . .., exclusive of board, lodging or other facilities;
(2) Whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and
(3) Whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. 29 C.F.R. § 541.200.
The " employer claiming entitlement to [an overtime] exemption has the burden of proof that the exemption applies." Somers v. Converged Access, Inc., 454 Mass. 582, 591 n.12, 911 N.E.2d 739 (2009), citing Goodrow v. Lane Bryant, Inc., 432 Mass. 165, 170, 732 N.E.2d 289 (2000). See Cash v. Cycle Craft Co., 508 F.3d 680, 683 (1st Cir. 2007) (burden on employer to prove exemption from FLSA's requirements). The overtime exemptions must be " narrowly construed against the employers seeking to assert them." Reich v. John Alden Life Ins. Co., 126 F.3d 1, 7 (1st Cir. 1997), quoting Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d 393, (1960) (interpreting FLSA and noting " remedial nature" of statute); Hines v. State Room, Inc., 665 F.3d 235, 240 (1st Cir. 2011) (exemptions must be " drawn narrowly against the employer").
The parties agree that Goldberg satisfies the first element of the administrative employee test set forth in 29 C.F.R. § 541.200. Goldberg, however, contends that, as a TC, her position did not satisfy the second and third prongs of the test; that is, her " primary duty" did not " relate[ ] to the management or general business operations" of EF and did not " include[ ] the exercise of discretion and independent judgment with respect to matters of significance."
C. Primary Duty
Goldberg disputes that her " primary duty" as a TC was " the performance of . . . work directly related to the management or general business operations of the employer or the employer's customers, " as required by 29 CF.R. § 541.200. An analysis of this prong of the administrative employee test requires the court first to identify what Goldberg's " primary duty" as a TC was. The federal regulations define " primary duty" as follows:
EF's memorandum and reply brief give little attention to the second prong of the administrative employee test, focusing primarily on the third prong.
To qualify for exemption under this part, an employee's " primary duty" must be the performance of exempt work. The term " primary duty" means the principal, main, major or most important duty that the employee performs. Determination of an employee's primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee's job as a whole. Factors to consider when determining the primary duty of an employee include, but are not limited to, the relative importance of the exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee's relative freedom from direct supervision; and the relationship between the employee's salary and the wages paid to other employees for the kind of nonexempt work performed by the employee.29 C.F.R. § 541.700(a). The regulations explain that " employees who spend more than 50 percent of their time performing exempt work will generally satisfy the primary duty requirement, " but that " [t]ime alone . . . is not the sole test" and employees who spend less than 50 percent of their time performing exempt work may still " meet the primary duty requirement if the other factors support such a conclusion." 29 C.F.R. § 541.700(b). See Marzuq v. Cadete Enterprises, Inc., 807 F.3d 431, 438 (1st Cir. 2015) (" [A]n employee's 'primary' duty is not determined solely by the amount of time he or she devotes to the different categories of tasks--i.e., exempt vs. nonexempt--but on the overall character of his or her position").
Assuming the court can identify the employee's " primary duty" from the undisputed facts, it must then go on to analyze whether that " primary duty" was " work directly related to the management or general business operations of the employer or the employer's customers." 29 C.F.R. § 541.200. The federal regulations provide that " [t]he phrase 'directly related to the management or general business operations' refers to . . . work directly related to assisting with the running or servicing of the business, as distinguished, for example, from working on a manufacturing production line or selling a product in a retail or service establishment." 29 C.F.R. § 541.201(a). The regulations provide examples of " work in functional areas" that would qualify as " work directly related to management or general business operations, " including: " tax; finance; accounting; budgeting; auditing; insurance; quality control; purchasing; procurement; advertising; marketing; research; safety and health; personnel management; human resources; employee benefits; labor relations; public relations, government relations; computer network, internet and database administration; legal and regulatory compliance; and similar activities." 29 C.F.R. § 541.201(b).
The three cases heavily relied upon by EF provide limited guidance in determining whether Goldberg's work meets the second prong of the administrative employee test. Reich v. John Alden Life Ins. Co., 126 F.3d 1 (1st Cir. 1997), was decided based on regulations that have since been substantively amended. In Hines v. State Room, Inc., 665 F.3d 235, 242 (1st Cir. 2011), the parties did not dispute that the plaintiffs satisfied the second prong of the administrative employee test. Finally, Cash v. Cycle Craft Co., Inc., 508 F.3d 680 (1st Cir. 2007), is factually distinguishable. In Cash, the plaintiff was a " New Purchases/Customer Relations Manager" whose job duties included ensuring that motorcycles were outfitted and delivered according to the particular purchase orders, coordinating deliveries and pickups, and staying in contact with customers to make sure they were happy with the service they received (i.e., exempt tasks associated with the running or servicing of the business), as distinguished, for example, from working on a manufacturing production line or selling a product in a retail or service establishment. Id. at 681-82. Unlike Goldberg, the job responsibilities of the plaintiff in Cash did not include making sales transactions or routine selling efforts (i.e., non-exempt tasks associated with selling a product). Id. at 686.
The summary judgment record reflects questions of material fact regarding the nature of a TC's (and in particular Goldberg's) " primary duty" and whether that " primary duty" constituted " work directly related to the management or general business operations of the employer or the employer's customers, " so as to satisfy the second prong of the administrative employee test. While some of the evidence before the court suggests that Goldberg's primary duty was to engage in sales along highly regimented lines, other evidence suggests that she " engaged in 'something more than routine selling efforts focused simply on particular sales transactions, '" potentially satisfying the second prong of the test. Reich, 126 F.3d at 10.
Evidence that one of Goldberg's main responsibilities was selling tours is found in her own testimony regarding her day-to-day responsibilities, as well as the fact that EF had separate departments for advertising, marketing, and business development; held TCs to certain expectations with regard to the number of leads called and sales made over a given time period; provided TCs with sales scripts; and required TCs to attend sales training sessions on a regular basis. Other evidence suggests that sales was just one aspect of the TC position and that Goldberg's job responsibilities also included marketing, account maintenance, and customer service/satisfaction. EF's job description for the TC position and Goldberg's resume certainly describe the position in a way that goes beyond the simple sales person characterization promoted by the plaintiff. In addition, Goldberg testified that, as part of her job, she did independent research and strategized regarding how to grow her territory and develop new sales leads and was responsible for account management and handling customer service-type calls when emergencies came up during tours.
Because of this conflicting evidence, I cannot identify, as a matter of law, what Goldberg's " primary duty" as a TC was or whether that " primary duty" constituted " work directly related to the management or general business operations of the employer or the employer's customers." Questions of material fact render summary judgment inappropriate, especially where the employer bears the burden of proving that the administrative exemption applies and overtime exemptions must be narrowly construed. See Reich, 126 F.3d at 7.
D. Exercise of Discretion and Independent Judgment
Goldberg also disputes that a TC's " primary duty includes the exercise of discretion and independent judgment with respect to matters of significance" so as to satisfy the third prong of the administrative employee test. This issue is a closer call than the second prong, but the court agrees with Goldberg that questions of fact regarding her " primary duty" and whether she exercised the requisite " discretion and independent judgment" preclude summary judgment.
With respect to the third prong, the pertinent federal regulations provide:
(a) . . . In general, the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered. The term " matters of significance" refers to the level of importance or consequence of the work performed.
(b) The phrase " discretion and independent judgment" must be applied in the light of all the facts involved in the particular employment situation in which the question arises. Factors to consider when determining whether an employee exercises discretion and independent judgment with respect to matters of significance include, but are not limited to: whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices; whether the employee carries out major assignments in conducting the operations of the business; whether the employee performs work that affects business operations to a substantial degree, even if the employee's assignments are related to operation of a particular segment of the business; whether the employee has authority to commit the employer in matters that have significant financial impact; whether the employee has authority to waive or deviate from established policies and procedures without prior approval; whether the employee has authority to negotiate and bind the company on significant matters; whether the employee provides consultation or expert advice to management; whether the employee is involved in planning long- or short-term business objectives; whether the employee investigates and resolves matters of significance on behalf of management; and whether the employee represents the company in handling complaints, arbitrating disputes or resolving grievances.
(c) The exercise of discretion and independent judgment implies that the employee has authority to make an independent choice, free from immediate direction or supervision. However, employees can exercise discretion and independent judgment even if their decisions or recommendations are reviewed at a higher level. Thus, the term " discretion and independent judgment" does not require that the decisions made by an employee have a finality that goes with unlimited authority and a complete absence of review. The decisions made as a result of the exercise of discretion and independent judgment may consist of recommendations for action rather than the actual taking of action. The fact that an employee's decision may be subject to review and that upon occasion the decisions are revised or reversed after review does not mean that the employee is not exercising discretion and independent judgment. For example, the policies formulated by the credit manager of a large corporation may be subject to review by higher company officials who may approve or disapprove these policies. The management consultant who has made a study of the operations of a business and who has drawn a proposed change in organization may have the plan reviewed or revised by superiors before it is submitted to the client.29 C.F.R. § 541.202.
As noted above with respect to the second prong of the administrative employee test, questions of fact exist regarding the identity of Goldberg's " primary duty" as a TC. Without resolution of the question of what a TC's " primary duty" is, the court cannot say whether that " primary duty included] the exercise of discretion and independent judgment with respect to matters of significance, " so as to satisfy the third prong of the test. These factual issues preclude summary judgment. While the record contains many examples of Goldberg exercising discretion and independent judgment with respect to certain aspects of her job (e.g., deciding which tours to suggest to a particular teacher, offering small discounts on tour prices), the evidence does not inevitably support the conclusion that this aspect of her job was her " primary duty, " or that the discretion and independent judgment Goldberg exercised was in connection with " matters of significance." As a result, summary judgment is inappropriate.
H. Class Certification
Plaintiff seeks certification of the class of " all individuals who have worked as tour consultants on regional sales teams at EP Educational Tours in Massachusetts since March 9, 2012." For the following reasons, I certify this class.
A. The Applicable Standard
The decision to grant or deny class status under Rule 23 is within the broad discretion of the trial court. See Hazel's Cup & Saucer, LLC v. Around the Globe Travel, Inc., 86 Mass.App.Ct. 164, 166, 15 N.E.3d 220 (2014). Under Mass.R.Civ.P. 23, a class will be certified " only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." Mass.R.Civ.P. 23(a). These elements are frequently referred to as numerosity, commonality, typicality, and adequacy. In addition, a plaintiff must show that " questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Mass.R.Civ.P. 23(b). See generally Weld v. Glaxo Wellcome, Inc., 434 Mass. 81, 85-86, 746 N.E.2d 522 (2001). These elements are frequently referred to as predominance and superiority.
On a motion for class certification, plaintiff " bear[s] the burden of providing information sufficient to enable the motion judge to form a reasonable judgment that the class meets the requirements [for certification]." Weld, 434 Mass. at 87. Specifically, plaintiff must show that the putative class members " are affected in the same way by the acts of the defendant and " seek the same remedy against" the defendant. Omega Flex, Inc. v. Pacific Employers Ins. Co., 78 Mass.App.Ct. 262, 267-68, 937 N.E.2d 52 (2010), quoting Spear v. H.V. Greene Co., 246 Mass. 259, 267, 140 N.E. 795 (1923). Certification turns on whether the plaintiff's claim is " sufficiently cohesive to warrant adjudication by representation." Salvas v. Wal-Mart Stores, Inc., 452 Mass. 337, 364, 893 N.E.2d 1187 (2008). " A party seeking class certification 'need only provide information sufficient to enable the motion judge to form a reasonable judgment that certification requirements are met.'" Bellermann v. Fitchburg Gas and Elec. Light Co., 475 Mass. 67, 72, 54 N.E.3d 1106 (2016), quoting Aspinall v. Philip Morris Cos., 442 Mass. 381, 392, 813 N.E.2d 476 (2004).
B. The Propriety of Class Certification
There is no question that EF has treated all of the members of the putative class--those who have worked as TCs on regional sales teams at EF in Massachusetts since March 9, 2012--as " administrative" employees exempt from overtime. EF has not paid TCs overtime and has taken the consistent position that all TCs have a " primary duty" that meets the second and third prongs of the definition of " administrative" employees in 29 C.F.R. § 541.200. Plaintiff challenges that claim under G.L.c. 151, § § 1A and 1B, contending instead that a TC's " primary duty" does not meet the definition in § 541.200.
As an initial matter, it is important to acknowledge that claims alleging a violation of G.L.c. 151, § 1A are expressly authorized to be brought on behalf of all " others similarly situated." G.L.c. 151, § 1B. This statute implements " very legitimate policy rationales . . . to provide for class proceedings" in such cases. See Machado v. System4, LLC, 465 Mass. 508, 515, 989 N.E.2d 464 (2013).
Second, applying the factors in Mass.R.Civ.P. 23, Goldberg has demonstrated that a class action is the appropriate mechanism to challenge the treatment of all TCs as " administrative" employees exempt from overtime. EF concedes that the class, which contains well in excess of 40 members, satisfies numerosity. Goldberg has demonstrated that there are questions of law and fact common to all members of the class and that those questions predominate over any individual questions. Contrary to EF's suggestion, plaintiff is not required to demonstrate commonality in any particular way and is not required to submit affidavits from other putative class members. Here, plaintiff has made a showing of commonality by submitting factual material from managers at EF and substantial EF material about how TCs are expected to carry out their job functions. Indeed, despite some individual differences, the affidavits submitted by EF also show a consistent pattern of work duties.
For their part, EF has challenged plaintiff's showing of commonality by showing that certain TCs exercised the discretion allotted to them in different ways; personally employed slightly different methods; were assigned to different territories, and put in different amounts of overtime. The fact that there are some individual differences does not bar a finding of commonality. Indeed, the fact that the court must look to predominance, a concept closely linked to commonality, reflects that in virtually any class, there will be individual differences among class members.
The question of whether the TCs' " primary duty" is " administrative" is not answered by looking to the slight deviations among employees in the way they perform their job function, but by focusing on " the principal, main, major or most important duty that the employee performs." 29 C.F.R. § 541.700(a) (emphasis added). While this is a factual question, it focuses " on the character of the employee's job as a whole ." Id. (emphasis added). The question forces the court to look to EF's expectations for its TCs, and the TCs' behaviors, as a whole. In this regard, plaintiff has adequately shown that common factual issues unite the class and predominate over individual class member issues.
The fact that different TCs performed different amounts of overtime and would be in line for different recoveries if the plaintiff class were to prevail on the merits also does not undermine the finding of commonality or predominance. Differences in harm are not a bar to class certification, and may be readily handled in implementing a remedy if liability is determined. See Salvas, 452 Mass. at 364-69. To the extent EF points to different amounts of overtime as suggesting variability among TCs--some spent more and some spent less time working--it suggests no meaningful difference in the TCs' " primary duty."
Goldberg has also demonstrated typicality, adequacy and superiority. Goldberg operated as a TC under the same corporate policies and with the same amount of discretion (whether exercised or not) as other TCs. The fact that she worked at EF from 2012 to 2014 does change her suitability to represent the class on the question of what a TC's " primary duty" has been since 2012 and whether that " primary duty" satisfies the regulatory definition of an exempt " administrative" employee. The fact that Goldberg was laid off from EF also does not alter her typicality. It is an immaterial distinction. In regard to superiority, given the common issues of fact and law and the legislative preference for class treatment in such cases, a class action is the best way to address the issue raised in this case.
EF has not meaningfully challenged plaintiff's motion on the grounds of adequacy. Plaintiff and her counsel have more than diligently litigated this case. Plaintiff's counsel are well-versed in class litigation and are adequate to serve as class counsel.
EF points to no material changes to the job description or duties of a TC implemented after Goldberg left EF.
ORDER
Defendant's Motion for Summary Judgment is DENIED . Plaintiff's Motion for Class Certification is ALLOWED . I certify plaintiff to represent the following class:
All individuals who have worked as tour consultants on regional sales teams at EF Educational Tours in Massachusetts since March 9, 2012.