of the alleged unlawful overtime pay practices came in the form of “self-serving declarations” of doubtful credibility. Id. at *5. For example, an opt-in plaintiff declared that she worked as a fixed-route bus driver until December 2020. However, the manager who oversaw the opt-in plaintiff ’ s location declared that no driver at that location drove a fixed bus route. The court reasoned no “strong likelihood” exists that the opt- in plaintiff is similarly-situated to the named plaintiffs given that the opt-in plaintiff could not be in the proposed collective of fixed-route bus drivers. Id. at *12. The court also considered the evidence of written policies regarding meal breaks, or the lack thereof, for fixed-route bus drivers. Contrary to the plaintiffs’ allegation of company-wide automatic pay deductions for meal break time, the manager of the location at which one of the named plaintiffs had worked declared that drivers at that location did not even receive meal breaks. The collective bargaining agreements in evidence showed that different locations of work had different policies governing time entry and breaks for fixed-route bus drivers. For example, a collective bargaining agreement for one location stated that the defendant paid drivers for 15 minutes of time prior to their route to perform pre-shift work. A collective bargaining agreement for another location said the defendant paid drivers 20 minutes for pre-shift work. In sum, the court reasoned that the evidence revealed dissimilarity in policies and practices concerning compensation for the company ’ s fixed-route bus drivers. Because the evidence showed employees were subject to different policies concerning key issues such as how they report time, how schedules are set, what period of time is compensable, whether they receive a meal break and how meal breaks are paid, the court concluded the plaintiffs did not satisfy the “strong likelihood” standard announced in Clark to obtain court-authorized notice of their FLSA claims. Id. at *12- 13. Defendants in 2023 continued utilizing the U.S. Supreme Court ’ s decision in Bristol-Myers Squibb Co., et al. v. Superior Ct. , 137 S. Ct. 1773 (2017), which found that California courts lacked specific jurisdiction over non-resident plaintiffs’ claims in a “mass action” brought under California law, to defeat attempts to proceed with nationwide collective actions on personal jurisdiction grounds. Suazo, et al. v. Bluemercury, Inc ., 2023 U.S. Dist. LEXIS 65927 (N.D. Cal. Apr. 14, 2023), is a key decision in which a defendant successfully limited the scope of collective actions on jurisdictional grounds. In that case, the plaintiffs both worked as store managers in California and sought to represent a proposed nationwide collective of store managers under the FLSA, excluding New York, alongside claims for violations of California state law. The lawsuit followed a failed attempt to certify a nationwide collective action in New York, where personal jurisdiction over non-New York managers was denied, and four managers from Maryland, Florida, South Carolina, and Minnesota opted-in to the proposed FLSA collective action. The defendant moved to dismiss the claims of the out-of-state opt-in plaintiffs, citing lack of personal jurisdiction pursuant to the Supreme Court ’ s decision in Bristol-Meyers Squibb regarding specific jurisdiction in state court mass tort actions. The court first addressed whether Bluemercury ’ s motion was procedurally proper, noting that the FLSA collective action mechanism differs from Rule 23 class actions, as opt-in plaintiffs have equal status to original plaintiffs and are not mere putative class members. The court held that defendant ’ s personal jurisdiction defense was available against the opt-in plaintiffs. The court next examined whether Bristol-Myers Squibb applies to federal court FLSA collective actions. It concluded that the absence of a nationwide service of process provision in the FLSA and the federal court ’ s equivalent position to state courts in personal jurisdiction matters under Rule 4(k)(1)(A) warranted the application of Bristol-Myers standards. Consequently, without a direct connection between the out-of- state plaintiffs’ claims and California, the court determined it lacked specific jurisdiction over their claims and dismissed the out-of-state opt-in plaintiffs. The court further declined the plaintiffs’ invitation to exercise “pendent personal jurisdiction,” a doctrine permitting jurisdiction over a claim without an independent basis if it arises from a common nucleus of operative facts with a claim under the court ’ s jurisdiction, as lacking support in the Federal Rules or statutory law, in addition to its difficulty to reconcile with Bristol-Myers . Id. at *12-13. Another example of this defense strategy is Adams, et al. v. Absolute Consulting, Inc., 2023 U.S. Dist. LEXIS 73313 (W.D. Tex. Apr. 27, 2023). The plaintiff filed a collective action alleging violations of the FLSA against the defendant, and sought to include other similarly-situated employees. The defendant moved to
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© Duane Morris LLP 2024
Wage & Hour Class And Collective Action Review – 2024
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