allegations, and therefore was not suitable to consider at the conditional certification stage. The court reasoned that the plaintiff made the requisite showing necessary to demonstrate that she was similarly- situated to other home health aides for purposes of conditional certification. Accordingly, the court granted the plaintiff ’ s motion. Another example is Loy, et al. v. Rehab Synergies, LLC, 71 F.4th 329 (5th Cir. 2023). The plaintiffs filed a collective action against the defendant alleging violations of the FLSA. The plaintiffs in this case were employed as either speech language pathologist (SLP), physical therapist (PT), physical therapist assistant (PTA), occupational therapist (OT), or certified occupational therapist assistant (COTA), at 20 of defendant ’ s facilities serving a variety of patients with different conditions, including patients with dementia and patients recovering from strokes, accidents, and surgeries. All plaintiffs were subject to productivity requirements, and they claimed they did unpaid off-the-clock work to meet these requirements, which resulted in unpaid overtime. The plaintiffs filed a motion for conditional certification of a collective action, and the district court granted the motion. On appeal, the Fifth Circuit affirmed the district court ’ s ruling. The district court had ruled that the plaintiffs were similarly-situated based on their shared experiences with off- the-clock work, despite differences in their job roles and facilities. The defendant argued that the district court abused its discretion and erred in analyzing whether the plaintiffs were similarly-situated by misidentifying the “merits question” as whether the plaintiffs were subject to a common productivity requirement instead of whether the defendant knew or should have known that the plaintiffs were working overtime. Id. at 337. The Fifth Circuit determined that the district court properly considered whether the plaintiffs were similarly-situated. The Fifth Circuit also held that there were no unfairness or procedural issues in how the district court ruled in the action. The Fifth Circuit concluded that after reviewing the briefs, the record, and the relevant law, the district court applied the correct legal standards and that its factual findings were not clearly erroneous. The Fifth Circuit opined that because the plaintiffs were similarly-situated, it would have been inconsistent with the FLSA to require 22 separate trials for each individual plaintiff. The Fifth Circuit therefore affirmed the district court ’ s ruling granting the plaintiffs’ motion for conditional certification. A plaintiff ’ s declaration may also supply factual allegations that a non-employer entity ’ s employees are properly within the scope of the collective action. In Ramirez, et al. v. Liberty One Group LLC, 2023 U.S. Dist. LEXIS 121174 (S.D.N.Y. July 30, 2023), the plaintiff, a cleaner, filed a class and collective action alleging that the defendants, real estate companies specializing in property acquisitions, investments, development, and management, failed to pay overtime compensation and engaged in time shaving practices in violation of the FLSA and the New York Labor Law. The plaintiff filed a motion for conditional certification of a collective action, and the court ultimately granted the motion. The plaintiff asserted that defendant Liberty Brooklyn was a subsidiary of defendant Liberty One. Liberty Brooklyn was the plaintiff ’ s nominal employer according to her pay stubs, but she was interviewed and hired at an office space shared by both defendants. The plaintiff asserted that she was regularly scheduled to work from 7:00 a.m. to 4:30 p.m. five days a week, for a total 47.5 scheduled hours per week. Id. at *3. The plaintiff further contended that she was paid $15.00 per hour and overtime compensation of $22.50 per hour. The plaintiff alleged that she was often required to clock-out at 4:30 p.m. but was still required to complete work, and was not compensated for that time. Id. The plaintiff alleged that other cleaners were subject to the same procedure and that it represented a company-wide pattern. The plaintiff further asserted that the employees refrained from complaining out of fear of retaliation. The court found that the plaintiff adequately alleged that Liberty One and Liberty Brooklyn acted as a single integrated enterprise, as both operated from the same office space, shared executive officers, had a common human resources department, and used the same phone number. Thus, the court ruled that both defendants were proper parties to the action. The court found that the plaintiff made the requisite showing necessary to establish that she and the other workers were similarly-situated for purposes of conditional certification. Given the low evidentiary hurdle to conditional certification, even evidence demonstrating substantial variation and the absence of a common policy may not prevent conditional certification. In Gomez, et al. v. Epic Landscape Products, L.C., 2023 U.S. Dist. LEXIS 74772 (D. Kan. Apr. 28, 2023), the plaintiffs, a
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Wage & Hour Class And Collective Action Review – 2024
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