action alleging that the defendant failed to pay overtime compensation in violation of the FLSA. The court previously had granted the plaintiffs’ motion for conditional certification of a collective action. The defendant eventually filed a motion to decertify the collective action, and the plaintiffs filed a motion to strike the defendant ’ s motion as untimely. The court granted the plaintiffs’ motion, finding that the defendant ’ s delay in filing the motion was not excusable. The court found that there was no specific prejudice to the plaintiffs due to the delay, but allowing the defendant ’ s motion could cause additional delays in the legal proceedings, and potentially affecting the trial date. The defendant ’ s reason for the delay was an oversight by their counsel, who cited workload and illness as contributing factors. The court determined that the oversight was within the defendant ’ s control and did not constitute excusable neglect. However, the court acknowledged that the defendant appeared to act in good faith. The court concluded that the defendant had not shown excusable neglect and granted the plaintiffs’ motion to strike the motion to decertify the collective action. Though the plaintiff always carries the burden of proving class certification appropriate, even minimal evidence can satisfy Rule 23 when the defendant fails to present a viable defense to certification. For example, in Bryant, et al. v. North Coast Natural Solutions LLC , 2023 U.S. Dist. LEXIS 119463 (N.D. Ohio May 19, 2023), the plaintiffs, a group of workers in an industrial hemp manufacturing facility, filed a collective action alleging that the defendant misclassified them as exempt employees and thereby failed to pay overtime compensation and minimum wage in violation of the FLSA. The plaintiffs thereafter filed a motion for final certification, and the defendant did not move to decertify the action. In support of their motion, the plaintiffs submitted declarations stating that they worked on an hourly basis and were not paid minimum wage. The plaintiffs also offered declarations from 63 hourly workers who all stated that they were not paid minimum wage for all hours worked. The court concluded that absent any contrary evidence, the plaintiffs sufficiently established that they were subject to a unified pay policy that violated the FLSA. For these reasons, the court granted the plaintiffs’ motion. Another example is Martinenko, et al. v. 212 Steakhouse Inc., 2023 U.S. Dist. LEXIS 73982 (S.D.N.Y. Apr. 27, 2023). The plaintiffs, a group of restaurant employees, filed a class and collective action alleging that the defendant engaged in improper pay practices, including the deduction of a tip credit without providing the required notice, failed to pay overtime, failed to pay a premium for long workdays, and failed to provide wage notices and statements in violation of the FLSA and the New York Labor Law (NYLL). The plaintiffs filed a motion for class certification pursuant to Rule 23 on their NYLL claims, and the court granted the motion. The plaintiffs sought certification of a class consisting of tipped employees, such as servers, runners, bussers, and bartenders, who worked at 212 Steakhouse at any time from January 20, 2016 to the present. First, the court stated that although the exact class size was unknown, the class met the numerosity requirement and that there were common questions of fact and law among the putative class members. The court also stated that the plaintiffs met the typicality requirement and that their interests aligned with those of the class members. The court noted that the attorneys representing the plaintiffs were qualified, experienced, and able to handle the litigation effectively. The court also opined that the putative class was ascertainable as it was defined with clear criteria and definite boundaries. The court further found that common questions predominated, and a class action would be the superior method for resolving the claims efficiently. Accordingly, the court granted the plaintiffs’ motion for class certification. Reliance on attacking numerosity, particularly before significant discovery occurs, is unlikely to result in decertification of a class action, as demonstrated by Provencher, et al. v. Bimbo Bakeries United States, 2023 U.S. Dist. LEXIS 167382 (D. Vt. Aug. 7, 2023). The plaintiffs, a group of delivery distributors, filed a class and collective action alleging that the defendant misclassified distributors as independent contractors and thereby failed to pay overtime compensation in violation of the FLSA and state wage & hour laws. The defendant moved to strike the plaintiffs’ class claims, arguing that the proposed class failed to meet the numerosity, superiority, and ascertainability requirements. The court explained that motions to strike class allegations are generally disfavored, especially before significant discovery takes place. The court found that the plaintiffs had plausibly met the numerosity requirement by alleging that the class would include approximately 28 members, thereby making joinder impracticable. Id. at *6. The court also ruled that the
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Wage & Hour Class And Collective Action Review – 2024
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