the declaration of someone other than himself. The court ruled that this was insufficient for purposes of conditional certification. The court thus denied the plaintiff ’ s motion for conditional certification of a collective action. The limits of personal knowledge in a plaintiff ’ s declaration also resulted in the denial of certification in Foley, et al. v. Wildcat Investments, LLC, 2023 U.S. Dist. LEXIS 120278 (S.D. Ohio June 12, 2023). The plaintiff, a delivery driver, filed a collective action alleging that the defendant failed to reimburse drivers for job-related expenses and thereby failed to pay the minimum wage in violation of the FLSA. The plaintiff filed a motion for conditional certification of a collective action, and in support of his motion, the plaintiff offered his own declaration. The court ruled that the plaintiff ’ s declaration failed to establish a strong likelihood that there were others similarly-situated to him because: (i) the plaintiff ’ s testimony about the pay practices for other drivers at the stores where he worked was based on hearsay; and (ii) the plaintiff had no knowledge or information as to the pay practices at any other store location. Further, the court determined that the defendant ’ s testimony that drivers were reimbursed in the same manner but that reimbursement rates varied from driver to driver was further evidence that the plaintiff failed to allege any others similarly- situated to him. For these reasons, the court denied the plaintiff ’ s motion for conditional certification of a collective action. The defendant was able to successfully leverage the plaintiff ’ s lack of knowledge and evidence to prevent conditional certification of several groups of workers in Millstein, et al. v. County Of Los Angeles, 2023 U.S. Dist. LEXIS 114291 (C.D. Cal. July 3, 2023). The plaintiff, a non-exempt, hourly employee at the North County Correctional Facility (NCCF) filed a class action alleging that the defendant failed to pay overtime compensation, and failed to pay for meal and rest breaks in violation of the FLSA. The plaintiff filed a motion for conditional certification of a collective action, and the court granted the motion in part. The plaintiff sought conditional certification for three separate groups, including an unpaid overtime wage group, a rest period group, and a bona fide meal period group. The court granted preliminary certification for the unpaid overtime wage group consisting of current and former non-exempt hourly paid Custody Assistant employees at the NCCF who worked over 40 hours in a workweek without receiving overtime pay. However, the court denied preliminary certification for the rest period and bona fide meal period groups. The court determined that collective-wide treatment was not appropriate because these groupings included employees who could not take rest breaks and employees who did not receive bona fide meal breaks. The court concluded that the plaintiff failed to provide any plausible allegations and evidence to demonstrate that conditional certification should be granted as to these claims. Accordingly, the court granted in part and denied in part the plaintiff ’ s motion for conditional certification. Demonstrating individualized issues or variability amongst the proposed collective action members is another effective tactic for preventing conditional certification. The defendant-employer ’ s ability to demonstrate the fact-specific and individualized inquiries to determine liability effectively precluded conditional certification in Harris, et al. v. Georgia-Pacific Wood Products LLC, 2023 U.S. Dist. LEXIS 49156 (N.D. Ga. Mar. 23, 2023). The plaintiffs, a group of hourly employees, filed a class action alleging that the defendants’ payroll system improperly rounded employees’ working hours, thereby resulting in undercompensating the employees, particularly for overtime and shift differentials, in violation of the FLSA and the Arkansas Minimum Wage Act (AMWA). The plaintiffs filed a motion for conditional certification of a collective action and for class certification of the state law claims pursuant to Rule 23. The court denied both motions. The defendant argued that certification would be improper because of the highly individualized nature of the plaintiffs’ claims. The defendant also contended that even if rounding occurred in favor of the workers, the court “would still have to determine whether class members were actually working during all time that was rounded” to assess liability, which would require fact-specific inquiries for each class member. Id. at *9. Some production workers clocked-in early, some workers arrived and clocked-in a few minutes late, sometimes workers engaged in personal conversations during shift change before clocking-out, all of which would be non-compensable time, according to the defendant and the evidence. Since at other times workers clocked-in early and immediately started work, the defendant asserted that whether the employees were actually working during rounded time would require
16
© Duane Morris LLP 2024
Wage & Hour Class And Collective Action Review – 2024
Made with FlippingBook - professional solution for displaying marketing and sales documents online