experts and 12 current or former employees, sufficiently established that the plaintiffs were similarly- situated to the members of the proposed collective action for the purpose of conditional certification. Though Walmart attacked plaintiffs’ declarations as factually inconsistent and provided numerous declarations from employees rebutting the allegations in plaintiffs’ declarations, the court opined that it need not resolve factual disputes and did not even need to consider evidence offered by defendant to determine the propriety of conditional certification. Accordingly, the court granted the plaintiffs’ motion and conditionally certified a collective action consisting of California employees as well as a nationwide collective action. Another example demonstrating the low evidentiary burden is Greene, et al. v. County Of Essex, 2023 U.S. Dist. LEXIS 120354 (D.N.J. July 13, 2023). The plaintiffs, a group of Essex County Correctional Police and Police Superior Officers, filed a collective action alleging that the defendant, the County of Essex, failed to pay for overtime compensation in violation of the FLSA. The plaintiffs filed a motion for conditional certification of a collective action, and the court granted in part and denied in part the motion. The plaintiffs contended that they and putative opt-in plaintiffs were similarly-situated because they all had the same job title, job duties, and were subject to the same terms and conditions of employment, pay scale, and employee benefits. The plaintiffs asserted that they were required to attend and serve as instructors for trainings outside of their normal 40-hour workweek and were not compensated for this time. In support of their motion, the plaintiffs offered declarations from an Essex County Correctional Police Officer and a Police Lieutenant addressing instances where they worked more than their normal 40-hour workweek but were not paid for these excess hours. Id. at *5-6. The court found that the allegations and evidence provided made the requisite showing that the plaintiffs were similarly-situated to the members of the proposed collective action, such that conditional certification would be appropriate. For these reasons, the court granted the plaintiffs’ motion. The ease of achieving conditional certification is again demonstrated by Coyne, et al. v. Las Vegas Metropolitan Police Department , 2023 U.S. Dist. LEXIS 143215 (D. Nev. Aug. 15, 2023). The plaintiffs, a group of police officers, filed a collective and class action alleging that the defendant, the Las Vegas Metropolitan Police Department (LVMPD) failed to pay overtime compensation for certain pre-shift and post-shift activities related to scheduled overtime shifts in violation of the FLSA and Nevada wage & hour law. The plaintiffs specifically alleged that the defendant failed to pay for collecting specialized equipment, inspecting and refueling department vehicles, and returning equipment and vehicles. The plaintiffs filed a motion for conditional certification of a collective action, and the court granted the motion. In support of the motion, the plaintiffs offered their own declarations in which they averred that they and other potential members of the collective action all were subject to the LVMPD ’ s practice of requiring off-the-clock overtime work to collect and return specialized equipment. While the LVMPD argued that the plaintiffs were not similarly-situated because each scheduled overtime shift was unique, the court found that these differences should be addressed in the second step of the certification process, not at the conditional certification stage. Accordingly, the court granted the plaintiffs’ motion for conditional certification of a collective action. Evidence challenging a plaintiff ’ s factual allegations often will not bar conditional certification, as many courts see such evidence as pertaining to the merits of the plaintiff ’ s claims. For example, in Morrison, et al. v. Columbus Family Health Care LLC, 2023 U.S. Dist. LEXIS 79494 (S.D. Ohio May 5, 2023), the plaintiff, a home health aide, filed a collective action alleging that the defendant failed to compensate for her travel time between clients’ homes during her shifts in violation of the FLSA. The plaintiff filed a motion for conditional certification of a collective action, and the court granted in part the motion. In support of her motion, the plaintiff offered her own declaration in which she outlined that the defendant had a policy of not paying home health aides for travel time between clients’ homes during a single shift and that the plaintiff had personal knowledge of this practice extending to other home health aides. The defendant argued and submitted evidence that the plaintiff ’ s alleged uncompensated travel time between clients was significantly less than what was alleged, and that much of the alleged uncompensated travel time was actually non- compensable waiting time. The court found that defendant ’ s argument went to the merits of the plaintiff ’ s
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© Duane Morris LLP 2024
Wage & Hour Class And Collective Action Review – 2024
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