On June 11, the latest stage in the lawsuit of Josephine Johnson et al. v. Rainbow Group Ltd. and Alan Sager began in the 126th District Court of Judge Darlene Byrne. As reported in the Chronicle May 30 (“Getting Sheared by Sager”), a decade ago a group of hairstylists sued Rainbow and Sager, their former employers through various Supercuts franchise stores in Austin, Tyler, San Angelo, and Abilene. (Sager is also a lecturer in government at UT and the chair of the Travis Co. Republican Party.)
On Wednesday afternoon as the Chronicle went to press, Judge Darlene Byrne issued an order declining to rule on the class certification issue in the Supercuts case, granting instead the defendants’ plea that the court has no jurisdiction because the claims of the hairstylists have expired by statute of limitations. The stylists’ attorney, Ed Tuddenham, says he expects he will appeal; Jennifer Riggs, the attorney for Rainbow Ltd. and Alan Sager, could not be reached for comment at press time.
The employees charged that during the period covered by the lawsuit (February 1988 through July 1993), during regularly scheduled working shifts they were routinely held “off-the-clock” by managers and effectively required to be at work and on call for hair-cutting — for periods averaging several hours a week — for no pay. In 1999, 13 former employees were awarded a total of nearly $60,000 in back pay and interest (finally paid in February of this year), and on May 7 the court confirmed an earlier judgment that Supercuts must pay the plaintiffs’ attorneys fees as well.
At issue in the June 11 hearing was whether several hundred additional hairstylists formerly employed by Supercuts would be certified as a class in order to have their claims against the company tried together. Their attorney, Ed Tuddenham, presented evidence that the hairstylists’ Supercuts experience and legal claims against their former employer are sufficiently similar to justify trying the case as a class action. Supercuts’ counsel, Jennifer Riggs, countered that each hairstylist’s case was legally distinct and moreover that the plaintiffs had long since lost any claims or right to sue when Tuddenham failed to amend their original 1993 pleadings to include the grounds on which the case is now being argued — and on which the original 13 won in 1999. (The original suit was brought as a breach of contract but eventually tried and won under “quantum meruit” — a legal term meaning that both parties understood the hairstylists had a right to be paid for their off-the-clock work.)
Although the hearing formally concerned only the issue of class certification, each side offered some testimony representative of their arguments on the issue of unpaid labor. Former employees Bonnie Wagonner and Morgana Morgan testified that when they worked for Supercuts, they would regularly be scheduled for 40 hours (or more) per week, but when they arrived at work they would often be directed by their managers to wait to punch in — for minutes or even hours — until the managers decided there were enough customers on the floor. Rainbow Ltd. general manager Susan Spears testified that in fact the company’s time records reflect that Wagonner and Morgan regularly worked full-time schedules. Two current Supercuts employees — Candy Cunningham and Clarissa Alexander — told the court that while it was true that stylists sometimes “sat off the clock,” it was only by their own choice and as a means for managers to maintain store productivity and to allow flexible personal schedules.
After the hearing Riggs emphasized that testimony, adding that Supercuts “revolutionized the business” of haircutting by enabling workers who previously would have leased chairs and worked on a commission basis to receive “regular hourly wages and benefits.” She told the Chronicle it was never Supercuts policy to “hold” workers off the clock — that at least once a manager was fired for doing so — and that those several hundred employees who now claim they had been held off the clock were either misremembering or had other motives for joining the lawsuit. “I can’t speculate what they’re thinking [in claiming they were held off the clock]. … They weren’t held off the clock. … If someone comes in and says, ‘I’d rather go pay my bills or paint my nails if it’s not really busy yet,’ [or], ‘Is it OK if I go in the back and take a break,’ that’s a real different thing.
“I think some of these hairstylists have been led to believe that they’re entitled to being paid even if they were doing their own thing — and that’s where we have the disagreement.”
Morgana Morgan told the court that as a teenager she worked at three different Supercuts stores in 1990 and 1991 (her first employment) and learned during her first week on the job that managers expected her to arrive on time for her shifts and then sit in the break room until she was told to punch in, a routine sometimes followed again after lunch. Riggs asked whether anyone told her that she would be paid for that time. Morgan answered, “No one ever told me we were going to be paid for being off the clock.” Riggs then asked if she complained or refused to accept her paycheck.
“I was stupid; I didn’t notice it,” answered Morgan. “I was young.”
This article appears in June 20 • 2003.
