plaintiff emphasized the defendant ’ s prior statement in a discovery response that each of its Ohio facilities had consistent pay policies. In its supplemental brief, the defendant asserted that its statement did not mean that all putative class members performed the same job duties or worked the same schedules, among other arguments. The court held that the plaintiff fell short of the evidentiary showing necessary to demonstrate a “strong likelihood” that there was a group of employees “similarly-situated” to him under the standard in Clark . Id. at *5. First, the court explained the FLSA is silent as to the procedure for a plaintiff to advance claims with others who are “similarly-situated.” In the absence of statutory guidance, courts have exercised their discretion to set the procedure governing collective-wide treatment of FLSA claims. For this reason, the court analyzed the two-step standard announced in Clark . The first step evaluates whether the plaintiff has shown a “strong likelihood” that other employees are similarly-situated to the plaintiff. Id. at *6. The first step requires a plaintiff to submit evidence that the plaintiff ’ s FLSA injury “resulted from a corporate-wide decision” to violate the FLSA, not human error or a rogue manager. Id. at *9. Under the second step, the plaintiff must prove, by a preponderance of the evidence, that the employees who have opted-in to join the lawsuit are similarly-situated to the plaintiff. If the plaintiff makes that showing, the opt-in plaintiffs become actual parties to the lawsuit and proceed with the named plaintiff to trial. As the court reasoned, the Sixth Circuit ’ s opinion in Clark left the second step of the analysis relatively unchanged from the prior standard. In assessing the plaintiff ’ s status as similarly-situated to others, the court opined that no single factor is determinative. Among the relevant factors are whether the named plaintiff performed the same tasks and was subject to the same policies as the potential other plaintiffs, whether the potential other plaintiffs are subject to individualized defenses, and whether other potential plaintiffs have submitted affidavits. In applying the Clark standard, the court found insufficient the plaintiff ’ s reliance on hearsay statements in his own declaration, including what co-workers allegedly told him, to argue that the defendant had company-wide pay practices. Further, the plaintiff put forth no evidence of the company ’ s actual compensation plan. Therefore, the court denied the plaintiff ’ s motion for conditional certification of a collective action. Woods, et al. v. First Transit, Inc., 2023 U.S. Dist. LEXIS 172284 (N.D. Ohio Sept. 27, 2023), provides yet another illustrative example of the new standard employed by the Sixth Circuit. The plaintiffs filed a class and collective action lawsuit asserting claims of unpaid overtime in violation of the FLSA and Ohio, California and New York state laws. The plaintiffs alleged that the defendant failed to pay overtime wages to fixed-route bus drivers for work performed before and after their shifts. The plaintiffs also alleged the defendant deducted 30 minutes’ worth of time from their pay for unpaid meal breaks even when they did not receive uninterrupted break time. After the district granted the defendant ’ s partial motion to dismiss the New York and California state law claims, only the Ohio state law claims survived. Additionally, only two named plaintiffs remained after one of the named plaintiff s was shown never to have worked as a fixed- route bus driver. Two individuals filed consents to join the lawsuit as opt-in plaintiffs in October 2021 and a third joined the lawsuit in February 2022. After approximately six months of fact discovery solely on the issue of conditional certification, the plaintiffs moved for conditional certification of their claims under the FLSA. In support of their motion, the plaintiffs submitted sworn declarations of the two named plaintiffs and three putative opt-in plaintiffs, job descriptions, an employee handbook and a user guide for time entry. In opposition to the motion, the defendant submitted sworn declarations of managers at the locations at which the named or opt-in plaintiffs had worked, declarations of corporate human resources and payroll staff and collective bargaining agreements governing fixed-route bus drivers at various locations. After the parties fully briefed the motion, the district court deferred ruling on the motion until the Sixth Circuit Court of Appeals issued its anticipated decision on the standard for conditional certification in FLSA cases. Subsequently, the Sixth Circuit in Clark, et al. v. A&L Homecare and Training Center, LLC , 68 F.4th 1003 (6th Cir. 2023), announced a new standard for determining whether FLSA plaintiffs may issue court- sanctioned notice to other employees. After Clark , the parties submitted supplemental briefs arguing how the new standard applied to the plaintiffs’ pending motion. Upon weighing the parties’ competing evidence, the district court answered “no” to the question whether a strong likelihood exists that the named plaintiffs experienced the same policies of unpaid overtime wages as other employees of the defendant. The district court concluded that the plaintiffs did not introduce any evidence of a “company-wide policy” binding on all fixed-route bus drivers that potentially violates the FLSA. Id. at *12. The court stated that the only evidence
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Wage & Hour Class And Collective Action Review – 2024
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