individualized evidence and may depend on what specific supervisors allowed, each job ’ s demands, employees’ habits, shifts worked, or other factors. Id. at *10-11. The court agreed with the defendant that the plaintiffs failed to establish the requisite predominance that would support certification of the proposed class. The court reasoned that even if it were to determine that the rounding policy violated the FLSA or the AMWA, such a determination would not necessarily establish liability against the defendants on behalf of the class members. Id. at *14. The court therefore denied the motion for class certification. For largely the same reasons as in the predominance inquiry under Rule 23 class certification, the court concluded that the plaintiffs were not sufficiently similarly-situated to warrant conditional certification of the collective action under the FLSA. Accordingly, the court denied the plaintiffs’ motion. Loch, et al. v. American Family Mutual Insurance Co., 2023 U.S. Dist. LEXIS 36158 (W.D. Wis. Mar. 3, 2023), is an example where individualized issues regarding severance agreements precluded certification of a collective action. The plaintiff, an insurance adjuster, filed a collective action alleging that the defendant misclassified adjusters as exempt employees and thereby failed to pay overtime compensation in violation of the FLSA. The plaintiff filed a motion for conditional certification of a collective action, and the court denied the motion. The plaintiff sought conditional certification of a collective action consisting of “all current and former Personal Injury Protection, Med-Pay and/or No-Fault Adjusters who worked for American Family Casualty Insurance Co., anywhere in the United States, at any time from April 7, 2019, through the final disposition of the matter.” Id. at *3. In support of her motion, the plaintiff offered her own declaration and declarations of three additional former employees. The declarations detailed their job duties, discussed the number of hours a week typically worked, and stated that all of the adjusters at American Family ’ s Eden Prairie office were paid a salary with no additional compensation for overtime hours. Id. at *4. The declarations averred that this information was based on their own personal experiences, the job description provided by the defendant, and their personal observations of their co- workers. In support of its opposition to conditional certification, the defendant submitted the declaration of the plaintiffs’ former manager, which stated that plaintiffs executed severance agreement that the defendant contended would prevent them from pursuing FLSA or state wage & hour law claims against the defendant. The court found that the plaintiffs were not similarly-situated to members of the proposed collective action who were not subject to severance agreements. The court determined that the plaintiffs’ interests would not be aligned with the members of the proposed collective action since they already received payments they had an interest in keeping. For these reasons, the court denied the plaintiffs’ motion for conditional certification of a collective action. Evans III, et al v. Dart, Case No. 20-CV-2453 (N.D. Ill. Sept. 15, 2023), a COVID-related case, illustrates how focusing on the lack of a central policy can be utilized to defeat conditional certification. The factual origins of the case stemmed from a COVID-19 outbreak at the Cook County Department of Corrections in April 2020. The plaintiffs alleged that, amid the outbreak, the Cook County Jail required correctional officers to “engag[e] in decontamination/sanitation activities” before and/or after their shifts within the CCDOC, “including washing and sanitizing their uniforms, sanitizing their persons, sanitizing and maintaining personal protective equipment ( ‘ PPE ’ ), and showering.” Id. at 2. According to the plaintiffs, they would spend approximately 20 to 30 minutes before and after shifts completing these protocols but were not paid for that time. As the court noted, each of the plaintiffs “described slightly different activities that took slightly different amounts of time,” which formed “a consistent narrative of enhanced decontamination activities, significantly exceeding what they did prior to COVID . ” Id. at 4. In the same month that the April 2020 outbreak began, the plaintiffs filed their lawsuit on behalf of themselves and a proposed group of all persons who worked at the Cook County Jail between January 27, 2020 and June 11, 2021 who engaged in the purported COVID-19 decontamination protocols, but who were not paid for time spent on those activities. Id. at 3. The court declined to certify the proposed collective action based on finding that the plaintiffs fell short in identifying a common policy requiring workers in the proposed collective action to engage in those decontamination activities as a condition of their employment. Id. at 1. The court noted that the plaintiffs themselves acknowledged that there was no express written policy requiring correctional officers to decontaminate outside of work, and that the only instructions that they received from supervisors about decontamination was during roll call meetings, when supervisors would
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© Duane Morris LLP 2024
Wage & Hour Class And Collective Action Review – 2024
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