other locations failed to establish that those employees were also similarly-situated. The court, however, concluded that the plaintiff provided enough evidence to support conditional certification for his claim related to the improper calculation of overtime compensation because the defendant admitted to having a uniform policy regarding the manner in which it calculated overtime. For these reasons, the court granted in part and denied in part the plaintiff ’ s motion for conditional certification of a collective action. Ramirez, et al. v. Liberty One Group LLC, 2023 U.S. Dist. LEXIS 121174 (S.D.N.Y. July 14, 2023), is another example of how limited personal knowledge can confine a proposed expansive collective action. The plaintiff filed a collective action against the defendants alleging violations of the FLSA related to unpaid wages due to unlawful time-shaving practices. The plaintiff filed a motion for conditional certification of a collective action, and the court granted in part the motion. The plaintiff alleged that she sufficiently alleged that she was subjected to unlawful time-shaving practices by her employer and submitted her own declaration based on her personal experiences, observations, and conversations with her co-workers, who were all identified as “cleaning staff” and all were subjected to the same allegedly unlawful time-shaving policy. Id. at *21. The court found that the plaintiff met her modest burden of showing that the defendants subjected her and others to a common policy or plan that violated the FLSA. However, the court ruled that the plaintiff failed to establish that the plan extended beyond her location or beyond cleaning staff employees. The court reasoned that while the plaintiff mentioned other workers at various locations throughout New York City, she lacked specific details about these other locations, such as frequency, management, hiring practices, and interactions with co-workers. The defendants argued that the plaintiff did not allege the specific weeks in which the violations occurred. The court found that the defendants’ argument was more suitable at the second-step decertification stage. Accordingly, the court granted the motion for conditional certification of a collective action, but limited its scope to the cleaning staff at the location at which the plaintiff worked. Vanegas, et al. v. Signet Builders, Inc., 2023 U.S. Dist. LEXIS 134609 (W.D. Wis. Aug. 2, 2023), is another good example of how a collective action can be limited to only certain job titles. The plaintiff filed a collective action alleging that the defendant 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 proposed collective action included U.S. and H-2A workers who worked on agricultural construction projects for the defendant from January 2019 onwards. In support of his motion, the plaintiff offered his own declaration and interrogatory responses from several other workers, which stated that they were all subject to the same policy of not being paid overtime compensation for hours worked over 40 in a workweek. The court found that the plaintiff made the requisite showing that he was similarly-situated to some of the collective action members. The court noted that the plaintiff included in the collective action definition U.S. workers who may not be similarly-situated because they might be subject to different exemptions to the FLSA. As a result, the court granted conditional certification to a smaller collective action consisting only of H-2A workers and hourly-paid, non-managerial U.S. workers who performed manual labor on the defendant ’ s agricultural construction projects. Cates, et al. v. Alliance Coal, LLC, 2023 U.S. Dist. LEXIS 7118 (S.D. Ill. Jan. 13, 2023), is a great example of how even after conditional certification, defendants can successfully push back against attempts to broaden the collective action through attacks on the notice process. The plaintiff filed a collective and class action against the defendants alleging violations of the FLSA, the Illinois Minimum Wage Law (IMWL), and Illinois Wage Payment and Collection Act (IWPCA). The court previously had granted the plaintiff ’ s motion for conditional certification and approved notice to be sent by mail and email to all individuals who work or have worked for the defendants in Illinois within the last three years. The defendants were directed to produce to the plaintiff ’ s counsel the names and last known mailing and email addresses for all such individuals. Id. at *2. The defendants subsequently provided the plaintiff with a collective-wide list that included the names of 507 individuals, their last known mailing addresses, and their email addresses. At the end of the opt-in period, 32 individuals had opted-in and 28 notices (approximately 5.5%) were returned as undeliverable. Id. at *3. The plaintiff thereafter filed a motion requesting the court order the defendants to: (i) conduct a thorough search for all available email addresses for putative members of the
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© Duane Morris LLP 2024
Wage & Hour Class And Collective Action Review – 2024
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