Similarly, defendants can successfully challenge class actions alleged to violate state law where the underlying statute does not address the specific pay practice at issue. For example, in Hamilton, et al. v. Amazon.com Services LLC, 2023 U.S. Dist. LEXIS 36946 (D. Colo. Mar. 3, 2023), the plaintiff, an Amazon employee, filed a class action alleging that the defendant improperly excluded Holiday Incentive Pay (HIP) from its overtime compensation calculation in violation of Colorado wage & hour laws. The plaintiff asserted that the defendant failed to include HIP when adding up the total compensation that an employee was paid in a week, resulting in a lower regular rate of pay than if Amazon had included HIP. The plaintiff further contended that the defendant ’ s pay policies were uniform with respect to all non-exempt hourly employees working throughout Colorado. The defendant filed a motion to dismiss pursuant to Rule 12(b)(6), arguing that “Colorado law does not require that holiday pay, and thus [HIP], be included in the regular rate.” Id. at *5. The court agreed with the defendant. It ruled that the plaintiff failed to identify a Colorado statute or regulation requiring employers to include premiums for working on holidays when calculating an employee ’ s regular rate of pay and failed to cite any pertinent case law in support of such a requirement. Under the FLSA, employers can exclude premiums for working on holidays from the calculation of a worker ’ s regular rate of pay, so long as the holiday premium is at least 1.5 times the worker ’ s rate of pay for non-overtime hours on other days. Id. at *9. Accordingly, the court ruled that the defendant ’ s exclusion of HIP from the regular rate of pay complied with the FLSA, and because Colorado law was silent on the topic of holiday premium pay, the practice of following the FLSA was not a violation of Colorado law. For these reasons, the court granted the defendant ’ s motion to dismiss. 4. Rulings Decertifying Collective Actions Or Denying Rule 23 Class Certification In 2023, employers successfully decertified collective actions or defended against Rule 23 class certification by primarily employing two defense strategies. First, employers effectively showed significant variations in the experiences or job duties among the members of the proposed collective action and persuaded the court that collective actions were impractical due to the lack of a uniform policy or practice affecting all collective action members. Second, employers persuasively argued that the necessity for individualized inquiries regarding each collective action member ’ s circumstances would impede the ability to move forward as a class action or continue as a collective action, requiring decertification. LeVine, et al. v. Vitamin Cottage Natural Food Markets, Inc., 2023 U.S. Dist. LEXIS 92027 (D. Colo. May 25, 2023), provides a quintessential example of how an employer can decertify a collective action following discovery. The plaintiff, an assistant store manager (ASM), filed a collective action alleging that the defendant misclassified ASMs as exempt employees and thereby failed to pay overtime compensation in violation of the FLSA. The court previously had granted the plaintiff ’ s motion for conditional certification. Following discovery, the defendant filed a motion to decertify the collective action on the basis that the plaintiff could not meet his burden to establish that he and the opt-ins were similarly-situated such that the action should proceed on a collective-wide basis because opt-ins’ day-to-day experiences as ASMs varied significantly based primarily on the store that they were in and the store manager that they worked under. The court found the discovery responses and testimony of the named plaintiffs and opt-ins plaintiffs revealed material disparities in the extent of the management duties that they engaged in as ASMs, with regard to training employees, scheduling and task assignment, and ability to direct the work of other employees. The plaintiff argued that the disparities in responsibilities that the opt-ins testified to were “minor non-material differences.” Id. at *23. However, the court disagreed, particularly because the case theory asserted that the ASMs were misclassified as exempt employees under various exemptions to the FLSA. The court opined that determining the exemption status of any given individual would depend upon the facts and circumstances of each opt-in ’ s particular case, and would necessarily turn on individual experiences and circumstances. Thus, the court concluded the individualized defenses and credibility concerns would result in dozens of mini-trials that undercut the efficacy and fairness of a collective action. For these reasons, the court granted the defendants’ motion to decertify the collective action. Another example where the defendant successfully demonstrated disparate job duties and experiences, as well as individualized issues requiring resolution, is Clarke, et al. v. Pei Wei Asian Dinner LLC, 2023 U.S.
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© Duane Morris LLP 2024
Wage & Hour Class And Collective Action Review – 2024
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