Duane Morris Wage & Hour Class and Collective Action Revew …

collective action; (ii) provide all available telephone numbers for collective action members so that the plaintiff ’ s counsel could call to confirm their most up-to-date addresses for the notice mailing; (iii) allow the plaintiff use of text messages, posting, and remainder notices as part of a supplemental notice; and, (iv) extend tolling to cover the supplemental notice period. Id. at *4. The court denied the motion. The court found that the plaintiff submitted no evidence that the original notice was defective or that the low return rate was due to defects in the manner or the method of delivery. The court concluded that notice via telephone and posted reminders would be unnecessary and overly intrusive to the defendants’ business. The court reasoned that the plaintiff also failed to demonstrate that the opt-in period was too short or that any additional putative collective action members would have opted-in with additional time or notice. Id. at *5. For these reasons, the court denied the plaintiff ’ s motion. After the Sixth Circuit ’ s decision in Clark, et al. v. A&L Homecare and Training Center, LLC , 68 F.4th 1003 (6th Cir. May 19, 2023), district courts within the Sixth Circuit are required to apply the new “strong likelihood” standard to determine whether conditional certification and accompanying notice are appropriate. Id. at 1011. The heightened standard of proof now required by the Sixth Circuit ’ s revamped certification analysis is aptly demonstrated in Stewart, et al. v. First Student, Inc., 2023 U.S. Dist. LEXIS 118758 (N.D. Ohio July 7, 2023). The plaintiffs filed a collective action alleging that the defendant violated the FLSA by maintaining scheduling, timekeeping, and compensation policies and practices that enabled it to avoid paying overtime wages. The court previously had granted the plaintiffs’ motion for conditional certification and allowed notice to potential collective action members. After merits discovery, the case was transferred to the Northern District of Ohio, after 6,700 workers filed consent forms to join the case. However, the Sixth Circuit subsequently issued a decision in Clark, which changed the standard for allowing court-authorized notification to putative plaintiffs to focus on determining a “strong likelihood” that other employees are similarly-situated. The defendant thereafter filed a motion for reconsideration of the court ’ s ruling on the motion for conditional certification. The plaintiffs argued that the prior notice should be considered valid and full discovery should proceed immediately for all plaintiffs who filed consent forms. The plaintiffs also argued that reconsideration in this context would be tantamount to decertification, and that defendant did not address any decertification factors. The court ruled that the plaintiffs’ argument failed because the Sixth Circuit test for decertification did not apply to the reconsideration of a conditional certification motion under the FLSA. The court found that the Sixth Circuit ’ s change in the framework justified reconsideration. The court noted that the opt-in plaintiffs filing consent forms did not automatically become plaintiffs in the action, and that their status was not vested until the court conclusively determined they were similarly-situated. Finally, the court ruled that the burden of proving the notice was warranted remained with the plaintiffs, and the defendant had shown a significant change in the law, which justified reconsideration. For these reasons, the court granted the defendant ’ s motion for reconsideration. Another example of the heightened standard now required in the Sixth Circuit is Hutt, et al. v. Greenix Pest Control, LLC, 2023 U.S. Dist. LEXIS 120290 (S.D. Ohio July 12, 2023). Hutt demonstrates the impact of the Sixth Circuit ’ s revised standard for conditionally certifying a collective action. The plaintiff, a former pest control technician, filed a complaint against the defendant, his former employer, alleging that the defendant failed to pay him an overtime rate of pay for overtime hours worked, did not pay for certain tasks performed off the clock and took improper deductions from his pay. The plaintiff alleged that approximately 186 other pest control technicians were subject to the same wage violations as he had experienced. The plaintiff filed a motion for conditional certification, seeking to certify a collective action consisting of all pest control technicians employed at any of the defendant ’ s four facilities in Ohio during the three-year period before he filed the complaint. In support of the motion, the plaintiff relied on his own declaration, various pleadings, and the defendant ’ s responses to written discovery requests. The court held the motion in abeyance pending the Sixth Circuit ’ s ruling in Clark, et al. v. A&L Homecare and Training Center, LLC, 68 F.4th 1003 (6th Cir. 2023), which ultimately replaced the long-standing lenient test for facilitating notice under the FLSA with a more rigorous test akin to the standard used to obtain a preliminary injunction. Following the Sixth Circuit ’ s ruling in Clark , the court ordered the parties in Hutt to brief the issue of whether the plaintiff could satisfy the new, stricter standard to facilitate notice under 29 U.S.C. § 216(b). In the plaintiff ’ s supplemental brief, he argued that he had submitted enough evidence to satisfy the new standard. The

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Wage & Hour Class And Collective Action Review – 2024

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