meetings. Specifically, the plaintiff alleged three claims under the FLSA, including failure to pay minimum wages, failure to pay overtime wages, and retaliation. The plaintiff also brought two state law claims against JMJ under the NCWH for failure to pay wages due and failure to pay overtime wages. The court granted the plaintiff ’ s motion for class certification of the state claims that were not preempted by the FLSA, and following discovery, the defendants subsequently moved for decertification of the collective action. As to the defendants’ motion for decertification, the plaintiff argued that all employees making up the proposed collective action were paid based on a common policy, had similar roles at JMJ, and worked at one JMJ ’ s three group homes. The court agreed that JMJ had common policies and practices with respect to training, mandatory meetings, overtime pay, and employee time logs, which applied to all employees and showed that a common resolution of the FLSA claims was possible. The court further determined there were sufficient similarities between the employees’ factual allegations and employment settings, and similar circumstances with regard to JMJ ’ s defenses. Accordingly, the court denied the defendants’ motion for decertification of the collective action. McElwee, et al. v. Bryan Cowdery, Inc., 2023 U.S. Dist. LEXIS 118488 (S.D. Ohio July 12, 2023), further illustrates how proof of a common, applicable policy will often prevent decertification. The plaintiff, a deliver driver, filed a collective action alleging that the defendant manipulated employees’ work records in its timekeeping system and thereby failed to pay overtime compensation in violation of the FLSA. The court previously had granted the plaintiff ’ s motion for conditional certification of a collective action. The defendant subsequently moved for decertification of the plaintiff ’ s collective action, and the court denied the motion. The court found that the named plaintiff was similarly-situated to the 51 opt-in plaintiffs. The court stated that the named plaintiff and the opt-ins’ claims involved the same issues of law and fact about whether the defendants had a FLSA-violating policy of altering employee time records to avoid paying them overtime. Id. at *33. The court found that all claims were premised on changes that the defendants made to time recorded in its timekeeping system. Because the opt-ins were subject to the same timekeeping practices and performed the same duties as the plaintiffs, the court ruled that the proof that the defendants acted in conformity with the alleged FLSA violating policy would apply to all collective action members. The defendants argued that all collective action members were subject to individualized defenses. However, the court opined that the defendant raised the same defense against everyone, i.e., that all recorded time was changed to accurately reflect time actually worked and thus there was no violation. Accordingly, the court explained that the plaintiffs could prove their claims through evidence that the defendant acted in conformity with a FLSA violating policy, and the defendant could collectively prove their defense through evidence that they only changed employees’ recorded time when they had legitimate reason to believe that an employee reported time for work not performed. Id. at *34. Accordingly, the court denied the defendant ’ s motion for decertification. The failure to rebut evidence of common, applicable policies is highly likely to result in Rule 23 certification, as demonstrated by McGhee, et al. v. Tesoro Refinancing & Marketing Co. LLC, 2023 U.S. Dist. LEXIS 24989 (N.D. Cal. Feb. 14, 2023). The plaintiff, a unionized, hourly non-exempt employee, filed a class action alleging that the defendant rounded scheduled shift time punches and/or required employees to perform off-the-clock shift turnovers, discouraged employees from taking off-premises meals breaks, and required employees to remain on-duty and/or on premises during their rest breaks in violation of the California Labor Code. The plaintiff filed a motion for class certification pursuant to Rule 23, seeking to certify classes for each claim, including a minimum wage class, a minimum wage turnover time class, a meal break class, an on-duty rest break class, and a waiting time class. The court found that the classes met the numerosity requirement with 1,766 unionized employees. Id. at *4. Next, the court determined that the commonality requirement was satisfied because there were common questions of law and fact arising out the defendant ’ s allegedly unlawful employment practices that affected all putative class members. Id. at *4-5. The court also stated that the typicality requirement was met because the plaintiff, like all putative class members, was paid hourly, and was subject to the defendant ’ s alleged uniform wage policies and practices. The court also noted that the plaintiff and plaintiff ’ s counsel met the adequacy requirement because the plaintiff did not have a conflict of interest with other class members, and the plaintiff ’ s counsel had experience litigating employment-related litigation and wage and hour class action claims under
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© Duane Morris LLP 2024
Wage & Hour Class And Collective Action Review – 2024
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