group of landscape workers, filed a collective action alleging that the defendant failed to pay overtime compensation in violation of the FLSA. The plaintiffs filed a motion for to conditionally certify the collective action consisting of all current and former lawn and landscape workers who worked for the defendants at any time from three years and 120 days from the date of conditional certification. In support of the motion, the plaintiffs provided 620 pages of pay records and the defendant ’ s discovery responses. The defendant argued that the plaintiffs’ proposed collective action was too disparate for conditional certification because it included employees who performed six different types of work, worked in three different locations, and were covered by three separate FLSA exemptions. The defendant further contended that the plaintiffs failed to show that they were similarly-situated to the proposed collective action members because they could not identify a single practice, policy, or plan that bound them all together. The court found that the defendant ’ s argument went to the merits of the plaintiffs’ overtime claims, and was thereby unsuitable to address at the conditional certification stage. The court determined that the complaint and supporting documents sufficiently showed that the collective action members were all paid on an hourly basis and were paid pursuant to the same pay practices, that all proposed members of the collective action worked in excess of 40 hours per week, and that no employees received overtime premiums for hours worked in excess of 40 hours prior to July 2021. Id. at *10. Accordingly, the court ruled that the plaintiffs made the requisite showing necessary that they were similarly-situated to members of the proposed collective action for purposes of conditional certification and granted the plaintiffs’ motion. Another salient example of where defendants’ evidence regarding variability was insufficient in light of the low evidentiary standard is Thornton, et al. v. Tyson Foods, Inc., 2023 U.S. Dist. LEXIS 127114 (W.D. Ark. July 24, 2023). The plaintiff filed a collective action alleging that the defendant failed to pay their last paychecks upon separation from the company in violation of the FLSA. The plaintiff filed a motion for conditional certification of a collective action, and the court granted the motion. The plaintiffs asserted that defendant was the victim of a cyberattack pursuant to which defendant ’ s timekeeping and payroll system, Kronos, duplicated paychecks for a certain time period. Subsequently, the defendant moved to a manual timekeeping system, which the plaintiffs alleged failed to accurately account for employees’ hours worked. The plaintiff initially sought to include all non-exempt employees affected by the Kronos outage in the proposed collective action. Though the defendant argued that all employees were not similarly-situated and that material differences existed, the court determined that the plaintiff met her modest factual burden to demonstrate that she was similarly-situated to the members of the proposed collective action. Specifically, the court noted that the defendant ’ s uniform policies in response to the Kronos outage affected all non-exempt employees similarly. For these reasons, the court granted the plaintiff ’ s motion for conditional certification of a collective action. Even variation between salaried and hourly employees nonetheless can sometimes result in conditional certification, as demonstrated by Onate, et al. v. AHRC Health Care, Inc ., 2023 U.S. Dist. LEXIS 22543 (S.D.N.Y. Feb. 9, 2023). The plaintiff filed a collective action on behalf of himself and other non-exempt salaried and hourly workers employed by AHRC Health Care, Inc., alleging that AHRC failed to pay workers the minimum wage and required overtime in violation of the FLSA. The plaintiff and 11 opt-in plaintiffs sought conditional certification of a collective action. The Magistrate Judge issued a report recommending that the motion be granted, and the defendant filed Rule 72 objections. The court overruled the objections and adopted the report. The plaintiff claimed that he was similarly-situated to non-exempt hourly employees in terms of being subjected to AHRC ’ s alleged unlawful pay practices, which included rounding down time, not paying for overtime, and deducting meal breaks. The defendant also argued that the plaintiff was exempt from the FLSA, but the court rejected that position. The court concluded that the factual variances between the plaintiff and the potential collective action members did not defeat conditional certification under the lenient FLSA standard. Therefore, the court granted the plaintiff ’ s motion for conditional certification of a collective action. Establishing a common policy applicable to all members of the collective action will almost always result in conditional certification. For example, in Hamilton, et al. v. NuWest Group Holdings, LLC, 2023 U.S. Dist. LEXIS 89075 (W.D. Wash. May 22, 2023), the plaintiffs filed a collective action alleging that the defendant
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Wage & Hour Class And Collective Action Review – 2024
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