merely “read and disseminate general advice from the CDC” and instruct guards to not bring items home from the jail. Id. at 4-5. The court also determined that the plaintiffs “did not report their off-duty decontamination activities to their supervisors, nor were they asked about those efforts or disciplined for failing to decontaminate proper.” Id. at 5. Further, the court noted that none of the plaintiffs “reported monitoring the time consumed by their daily decontamination activities, submitting any decontamination overtime, or asking their supervisors about decontamination overtime, although many testified that there was no clear way to submit an overtime claim for these activities in the CCDOC “Workforce” record system.” Id. The court also rejected the relevance of a Communicable Diseases Policy that Cook County had in place requiring workers to “use good judgment and follow training and procedures related to mitigating the risks associated with communicable disease,” and if exposed to one, to “begin decontamination procedures immediately, obtain medical attention if needed, and “notify a supervisor as soon as practical.” Id. at 7. Because this policy specified that its aim was to “provide a safe work environment,” the court found it “hard to imagine how a pre-shift shower or laundering one ’ s uniform after a drive home is consistent with that language” and concluded, in turn, that the policy did not require the plaintiffs to engage in COVID-19 protocols at issue outside of work at the jail. Id. at 11. Finally, the court opined how, even if the Communicable Diseases Policy applied to activities outside of work, an “insurmountable” problem for the plaintiffs was that “none of them seemed to know about the policy at the time they were undertaking those activities.” Id. at 12. As a result, the court found that there was no evidence showing that the defendants had actual or constructive knowledge of any de facto policy requiring the plaintiffs to engage in decontamination activities away from the jail. Id. at 15. For these reasons, the court concluded that the plaintiffs fell short of satisfying the requirements for conditional certification of their proposed collective action. Adams, et al. v. Bloomberg L.P., 2023 U.S. Dist. LEXIS 23757 (S.D.N.Y. Feb. 13, 2023), is another example of how continued challenges to an alleged violating policy can prevent conditional certification. The plaintiffs filed a class and collective action alleging that the defendant violated the FLSA and New York Labor Law (NYLL). Following discovery, the plaintiffs moved to file a third amended complaint, and renewed their motion for conditional certification of a collective action. The plaintiffs specifically asserted that the defendant ’ s rounding policy rounded employees’ badge swipe times to the nearest quarter-hour, both up and down, and also rounded breaks longer than 20 minutes to the nearest quarter-hour. The plaintiff contended that the policy was not neutral because it deducted breaks that were 20 minutes or longer. However, the court found that the plaintiffs failed to allege sufficient evidence to dispute the defendant ’ s description of its rounding policy, and therefore, the court found that the policy did not violate the FLSA or the NYLL. The court also determined that the employees’ time spent between badge swipe in/out and logging-on to their computers was not compensable work, as it fell under preliminary activities excluded from compensation under the FLSA. Accordingly, the court concluded that the plaintiffs failed to provide sufficient evidence of their claims related to unpaid overtime. The court therefore denied the plaintiffs’ motion. Employers that have settled related litigation may be able to utilize prior settlements to limit or prevent future litigation. Winking, et al. v. Smithfield Fresh Meats Corp., 2023 U.S. Dist. LEXIS 147172 (N.D. Ill. Aug. 22, 2023), another case arising out of the COVID pandemic, illustrates how settlements in other related litigation can be utilized to bar conditional certification. The plaintiffs, a group of meatpacking facility employees, filed a collective action alleging that the defendant failed to include incentive pay from the COVID-19 pandemic into its calculations for determining overtime compensation in violation of the FLSA. The defendant filed a motion to dismiss and the plaintiffs filed a motion for conditional certification of a collective action. The plaintiffs worked as hourly employees and, during the COVID-19 pandemic, the defendant offered a “Responsibility Bonus” to encourage attendance at work. The plaintiffs contended that the defendant failed to include this bonus when calculating the overtime compensation rate. The plaintiffs sought to represent a collective action of current and former employees who earned the Responsibility Bonus and worked overtime during the period at issue in the lawsuit. The defendant moved to dismiss the case initially based on the first-to-file rule, arguing that the case was duplicative of another action. The court found that the defendant ’ s motion to dismiss was moot because the other action had been settled
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© Duane Morris LLP 2024
Wage & Hour Class And Collective Action Review – 2024
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