of the collective action to the specific states where the identified facilities were located, since the plaintiff failed to establish that he was similarly-situated to nurses or technicians in other locations. Accordingly, the court only partially granted the plaintiff ’ s motion for conditional certification of the collective action. Johnson-Cradle, et al. v. KPS Affiliates Inc., 2023 U.S. Dist. LEXIS 72855 (S.D.N.Y. Apr. 26, 2023), is a good example of how an attack on the personal knowledge in a declaration can successfully limit the scope of conditional certification. The plaintiff, a security guard, filed a class and collective action lawsuit alleging that the defendant failed to pay overtime compensation in violation of the FLSA and the New York Labor Law (NYLL). The plaintiff sought conditional certification of a collective action consisting of all non- exempt security guards who worked for the defendant in New York. In support of the motion, the plaintiff offered her own declaration which stated that she worked from 12:00 a.m. to 8:00 a.m. five days per week, and from 4:00 p.m. to 12:00 a.m. twice a week, for a total of 56 hours per week, and that the defendant paid her $15.50 per hour, without any overtime premium. The plaintiff further averred that based on her own personal experience and from speaking with other security guards, they experienced the same treatment and were not paid overtime. The court, however, found the plaintiff ’ s evidence insufficient to support the broader collective action she sought, including employees with different job titles and from locations other than the location at which she worked. The court ruled that the plaintiff ’ s claims were specific to the Bronx location and the security guard role, and that she had not provided enough evidence to establish uniform unlawful policies across other locations or job titles. Accordingly, the court granted the motion for conditional certification only in part, with the collective action members limited to those employed in the security guard position at the defendant ’ s Bronx location. Another example where the limitations in the plaintiffs’ declarations were used to limit the scope of a collective action is Wallace, et al. v. Cantex Continuing CARE Network LLC, 2023 U.S. Dist. LEXIS 826 (W.D. Tex. Jan. 4, 2023). The plaintiff, a physical therapist, filed a collective action alleging that the defendant, a residential healthcare service provider, 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 granted in part the motion. The plaintiffs asserted that the defendant ’ s therapists, which included physical therapists, occupational therapists, speech language pathologists, and therapist assistants, regularly worked off-the- clock hours beyond their 40-hour workweek but did not get paid for these overtime hours. Id. at *3. The parties previously engaged in written and document discovery and took depositions of all four current named plaintiffs, the defendant ’ s executives, and two of the defendant ’ s management-level employees. The court held that the plaintiffs failed to satisfy their burden to demonstrate that all therapists were similarly-situated, regardless of facility, on a state-wide basis. Id. at *5. The court reasoned that although all the plaintiffs testified that they were required to work overtime without compensation in order to make billable hour goals, the plaintiffs could not testify to the experiences of any therapists in other office locations. The court determined that the plaintiffs’ argument that the “simple math” made it impossible to satisfy performance metrics without working off-the-clock lacked any basis in personal knowledge as to whether this off-the-clock work actually occurred anywhere but in the facility at which they worked. Id. at *9. For these reasons, the court limited the collective action to therapists working at the facility where the plaintiffs worked, and granted in part the motion for conditional certification of a collective action. Similarly, in Desmarais, et al. v. Ocean Spray Cranberries, Inc., 2023 U.S. Dist. LEXIS 145095 (D. Mass. Aug. 18, 2023), conditional certification was substantially limited. The plaintiff filed a collective action alleging that the defendant failed to compensate employees for pre-shift work and miscalculated regularly rates of pay for purposes of calculating overtime compensation in violation of the FLA. The plaintiff filed a motion for conditional certification of a collective action consisting of current and former production employees at the defendant ’ s manufacturing facilities. The court granted the motion in part. In support of his motion, the plaintiff provided his own declaration and job postings for locations that showed that the production employee position was the same at each location. The court ruled that the plaintiff made the requisite showing necessary to demonstrate that he was similarly-situated to production employees at his own facility location with regard to the overtime claims, but failed to make that showing for the pre-shift work claims. The court stated that the lack of any information of knowledge of the policies and practices at
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Wage & Hour Class And Collective Action Review – 2024
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