failed to include meal and housing stipends in the regular rate of pay for purposes of calculating overtime in violation of the FLSA. The plaintiff filed a motion for conditional certification of a collective action, and the court granted the motion. The defendant was a national staffing agency that contracted with healthcare facilities to staff open positions with fixed-term assignments. The plaintiffs were staffed individuals who traveled to other locations to work on assignments. The defendants paid housing and meal stipends, and the plaintiffs alleged that any overtime wages paid excluded these stipends from the regular rate of pay, thereby resulting in underpayment of wages. In support of the motion, the plaintiffs offered various allegations supported by declaration testimony, contracts, and paystubs demonstrating: (i) that the defendant tied the value of the per diem stipends to hours worked (as opposed to expenses incurred); and (ii) that the defendant excluded the value of these stipends from the regular rate when paying overtime. The court observed that the plaintiffs’ evidence established that the defendant maintained a policy that was applied to all contracts. The court determined that the plaintiffs made the requisite showing that they were similarly-situated to the members of the proposed collective action. For these reasons, the court thereby granted the plaintiffs’ motion for conditional certification of a collective action. Another example is Carabajo, et al. v. APCO Insulation Co., 2023 U.S. Dist. LEXIS 100894 (E.D.N.Y. June 9, 2023). The plaintiff, a former insulation prep and installer working for APCO, a building insulation and construction company, filed a class and collective action claiming APCO and its president violated the FLSA and New York Labor Law (NYLL) by failing to pay him and others similarly-situated overtime pay for weekly hours worked over 40, unlawfully deducting 30 minutes per day for meal breaks they did not actually take, and requiring them to come into work 15 minutes early before they could clock-in. The plaintiff moved for conditional certification of a collective action under the FLSA consisting of all current and former employees employed by APCO as non-exempt laborers or similarly-situated employees between July 15, 2016 and December 8, 2022. The plaintiff filed a declaration in support of his motion, and APCO filed a brief and declarations in opposition. As detailed in the court ’ s ruling, the Magistrate Judge found the plaintiff met his burden to show that while employed by APCO and its owner, he and others similarly- situated were subject to a policy running afoul of the FLSA. In support of its conclusion, the court pointed to APCO ’ s written policy notifying the plaintiff and other laborers they would not be paid for a day ’ s work if they did not clock-in or clock-out properly. The court also found support in APCO ’ s Employee Agreement, which stated that if laborers failed to punch-in when they got to a job site, or failed to punch-out when they left the job site, they “will not be paid . ” Id. at *4. The Magistrate Judge found it significant that APCO did not dispute the existence and application of the policy to the plaintiff and other similarly-situated laborers. The defendants did not contest that their employees worked overtime and did not unequivocally state the policy was not enforced or deductions were not taken under its application. The court explained that if an employee believed the policy to be lawful and was docked pay for improperly clocking-in or out, the employee would mistakenly believe they were paid correctly; however, they would still have a FLSA claim, be entitled to such docked pay, and the policy would still be illegal on its face. The Magistrate Judge found that resolution of the merits of the defendants’ denials and contradictory declarations in response to the plaintiff ’ s motion was inappropriate at the conditional certification stage of a lawsuit, and that the only pertinent question was whether the plaintiff satisfied the required modest factual showing that there was an illegal policy that applied to him and others. The court ruled in the affirmative and determined that the defendants’ written policy was illegal on its face and that the defendants applied it to all those similarly- situated. For these reasons, the court granted the plaintiff ’ s motion for conditional certification of a collective action. The same result transpired in Benvenutti, et al. v. GEICO General Insurance Co., 2023 U.S. Dist. LEXIS 73003 (M.D. Ga. Apr. 26, 2023). The plaintiff, a service representative, filed a collective action alleging that the defendant failed to pay service representatives for all hours worked and that her manager retaliated against her in violation of the FLSA. The plaintiff moved for conditional certification of her claims as a collective action under the FLSA. The court determined that the service representatives all worked at the same location, and performed generally the same job duties, including assisting customers with existing policies and billing issues. The service representatives were all paid on an hourly basis and all used the same software application that the plaintiff alleged failed to compensate them for time not captured,
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© Duane Morris LLP 2024
Wage & Hour Class And Collective Action Review – 2024
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