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Goldberg v. EF Education First, Inc.

Superior Court of Massachusetts, Middlesex

June 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 ...


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