Wage & Hour Class And Collective Action Review – 2025

Fair Labor Standards Act (FLSA) litigation presents a significant risk to companies of all sizes as the pace of these actions continues unabated into 2024. To assist with understanding trends in this realm, Duane Morris LLP has released the Duane Morris Wage & Hour Class And Collective Action Review – 2025, an annual publication that analyzes the key wage-and-hour rulings, settlements, and litigation developments in 2024 and the significant trends that are apt to impact these types of class actions in 2025.

DISCLAIMER The material in this Review is of the nature of general commentary only. It is not meant as or offered as legal advice on any particular issue and should not be considered as such. The views expressed are solely those of the authors. In addition, the authors disclaim any and all liability to any person in respect of anything and of the consequences of anything done wholly or partly in reliance on the contents of this Review. This disclaimer is from the Declaration of Principles jointly adopted by the Committee of the American Bar Association and a Committee of Publishers and Associations.

CITATION FORMATS All citations in the Duane Morris Wage & Hour Class And Collective Action Review are designed to facilitate research. If available, the preferred citation of the opinion included in the West bound volumes is used, such as Restaurant Law Center, et al. v. United States Department Of Labor, 120 F.4th 163 (5th Cir. 2024). If the decision is not available in the preferred format, a Lexis or Westlaw cite from the electronic database is provided, such as Floyd, et al. v. Stryker Corp ., 2024 U.S. Dist. LEXIS 179 (N.D. Tex. Jan. 2, 2024) or Fayad, et al. v. City Of Philadelphia, 2024 WL 1163543 (E.D. Penn. Mar. 18, 2024). If a ruling is not available in one of these sources, the full case name and docket information is included, such as Fenner, et al. v. Baltimore Police Department , Case No. 24-CV-2714 (D. Md. Oct. 18, 2024). E-BOOK HIGHLIGHTS The Duane Morris Wage & Hour Class And Collective Action Review is available for use on a smartphone, laptop, tablet, or any personal electronic reader by using any e-book reader application. E-book reading allows users to quickly scroll, highlight important information, link directly to different sections of the Review, and bookmark pages for quick access at a later time. The e-book is designed for easy navigation and quick access to informative data. The e-book is available by scanning the below QR code:

Wage & Hour Class And Collective Action Review – 2025

NOTE FROM THE EDITOR The stakes at issue in wage & hour class and collective action litigation are often significant. A company’s market share and corporate reputation are typically implicated by a class action, as are the careers of senior management. For obvious reasons, these exposures and risks put immense pressure on corporate decision- makers The purpose of the Duane Morris Wage & Hour Class And Collective Action Review is multi-faceted. We hope it will demystify some of the complexities of class action litigation, and keep corporate counsel updated on the ever-evolving nuances of Rule 23 and FLSA collective action issues. In this respect, we hope this book will provide our clients with an analysis of trends and significant rulings in the wage & hour space that enable them to make informed decisions in dealing with complex litigation risks Defense of wage & hour class and collective actions is a hallmark of the litigation practice at Duane Morris. We hope this book – manifesting the collective experience and expertise of our class action defense group – will assist our clients by identifying developing trends in the case law and offering practical approaches in dealing with class and collective action litigation. Sincerely,

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Wage & Hour Class And Collective Action Review – 2025

CONTRIBUTORS

Wage & Hour Class And Collective Action Review – 2025

GLOSSARY AND KEY U.S. SUPREME COURT DECISIONS Adequacy Of Representation – Plaintiffs must show adequacy of representation per Rule 23(a)(4) to secure class certification. It requires representative plaintiffs and their counsel to be capable of fairly and adequately protecting the interests of the class. Amchem Products, Inc. v. Windsor, et al. , 521 U.S. 591 (1997) – Windsor is the U.S. Supreme Court decision that elucidated the requirements in Rule 23(b), insofar as common questions must predominate over any questions affecting only individual class members and class resolution must be superior to other methods for the adjudication of the claims. Ascertainability – Although not an explicit requirement of Rule 23, some courts hold that the members of a proposed class must be ascertainable by objective criteria. Comcast Corp. v. Behrend, et al. , 569 U.S. 27 (2013) – Comcast is the U.S. Supreme Court decision that interpreted Rule 23(b)(3) to require that, for questions of law or fact common to the class, the plaintiffs’ damages model must show damages are capable of resolution on a class-wide basis. Commonality – Plaintiffs must show commonality per Rule 23(a)(2) to secure class certification. This requires that common questions of law and fact exist as to the proposed class members. Class – A group of individuals that has suffered a similar loss or alleged illegal experience on whose behalf one or more representatives seek to bring suit. Class Action – The civil action brought by one or more plaintiffs in which they seek to sue on behalf of themselves and others not named in the suit but alleged to have suffered the same or similar harm. Class Certification – The judicial process in which a court reviews the submissions of the parties to determine whether the plaintiffs have met their burden of showing that class treatment is the most appropriate form of adjudication. Collective Action – A type of representative proceeding governed by 29 U.S.C. § 216(b) where one or more plaintiffs seeks to bring suit on behalf of others who must affirmatively opt-in to join the litigation. It is applicable to claims under the Fair Labor Standards Act, the Age Discrimination in Employment Act, or the Equal Pay Act. Cy Pres Fund – In class action settlement agreements, this is the money set aside for distribution to a § 501(c) organization when class members do not return a settlement claim form and money is left over after distribution to the class. Decertification – Following an order granting conditional certification of a collective action or certification of a class action, a defendant can move for decertification based on the grounds that the members of the collective action are not actually similarly-situated or that the requirements of Rule 23 are no longer satisfied for the class action. Epic Systems Inc. v. Lewis, et al. , 138 S. Ct. 1612 (2018) – Epic Systems is the U.S. Supreme Court decision holding that arbitration agreements requiring individual arbitration and waiving a litigant ’ s right to bring or participate in class actions are enforceable under the Federal Arbitration Act. Opt-In Procedures – Under 29 U.S.C. § 216(b), a collective action member must opt-in to join the lawsuit before he or she may assert claims in the lawsuit or be bound by a judgment or settlement. Opt-Out Procedures – If a court certifies a class under Rule 23(b)(3), class members are bound by the court ’ s judgment unless they opt-out after receiving notice of the lawsuit.

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Numerosity – Plaintiffs must show that their proposed class is sufficiently numerous that adding each class member to the complaint would be impractical. This is a requirement for class certification imposed by Rule 23(a)(1). Ortiz, et al. v. Fibreboard Corp., 527 U.S. 815 (1999) – Ortiz is the U.S. Supreme Court ruling that interpreted Rule 23(b)(3) to require personal notice and an opportunity to opt-out of a class action where money damages are sought in a class action. Predominance – The Rule 23(b)(3) requirement that, to obtain class certification, the plaintiffs must show that common questions predominate over any questions affecting individual members. Rule 23 – This rule from the Federal Rules of Civil Procedure governs class actions in federal courts and requires that a party seeking class certification meet four requirements of section (a) and one of three requirements under section (b) of the rule. Rule 23(a) – It prescribes that a class meet four requirements for purposes of class certification, including numerosity, commonality, typicality, and adequacy of representation. Rule 23(b) – To secure class certification, a class must meet one of three requirements of Rule 23(b)(1), Rule 23(b)(2), or Rule 23(b)(3). Rule 23(b)(1) – A class action may be maintained if Rule 23(a) is satisfied and if prosecuting separate actions would create a risk of inconsistent or varying adjudications with respect to individual class members or adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests. Rule 23(b)(2) – A class action may be maintained if Rule 23(a) is satisfied and the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. Rule 23(b)(3) – A class action may be maintained if Rule 23(a) is satisfied and questions of law or fact common to class members predominate over any questions affecting only individual members and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Similarly-Situated – Under 29 U.S.C. § 216, employees may bring suit on behalf of themselves and others who are similarly-situated. The standard is not clearly defined in the statute and many courts have found that, if plaintiffs make a preliminary showing that they are similarly-situated to those they seek to represent, conditional certification is appropriate. A finding in this regard is usually not based on the merits of the claims. Superiority – The Rule 23(b)(3) requirement that a class action can be permitted only if class resolution is the superior method of adjudicating the claims. Typicality – The plaintiffs’ claims and defenses must be typical to those of proposed class members’ claims. This is required by Rule 23(a)(3). Wal-Mart Stores, Inc. v. Dukes, et al., 564 U.S. 338 (2011) – Wal-Mart is the U.S. Supreme Court ruling that tightened the commonality requirement of Rule 23(a)(2) and held that judges must conduct a “rigorous analysis” to determine whether there is a “common” contention central to the validity of the claims that is “capable of class-wide resolution.”

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TABLE OF CONTENTS

Page

Wage & Hour Class And Collective Actions ........................................................................... 1 I. Executive Summary...................................................................................................... 1 II. Key Rulings In Wage & Hour Class And Collective Actions In 2024......................... 4 III. Significant Rulings By The Supreme Court And Fifth Circuit Threaten To Upend Long-Standing FLSA Regulations............................................................................... 4 1. Some Progress Amongst General Reluctance To Adopt The Swales Or Clark Standards ................................................................................................ 5 2. Rulings Granting Conditional Certification Motions, Even With Minimal Supporting Evidence ........................................................................................ 6 3. Rulings Denying Or Substantially Limiting Conditional Certification Based On Insufficient Proof .......................................................................................13 4. Rulings Denying Conditional Certification Based On Procedural Or Technical Arguments.......................................................................................21 5. Rulings Decertifying Collective Actions Or Denying Rule 23 Class Certification ......................................................................................................24 6. Rulings Denying Decertification Or Granting Rule 23 Class Certification...29 7. Other Rulings In Class And Collective Actions............................................34 IV. Top FLSA / Wage & Hour Class And Collective Settlements In 2024 ......................36 Index Of 2024 Wage & Hour Class And Collective Action Rulings......................................38

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Wage & Hour Class And Collective Actions I. Executive Summary

Once again in 2024, as has been the case for several years, litigation against employers alleging violations of the Fair Labor Standards Act (FLSA) and/or related state law wage & hour laws continued to be an area of intense focus for plaintiffs’ attorneys. The plaintiffs’ bar in 2024 filed more wage and hour class and collective actions against companies than any other type of complex litigation, resulting in outsized importance for this area of substantive law. The chart below shows all FLSA filings by state in 2024.

To conditionally certify a collective action under the FLSA, plaintiffs must provide some evidence to support their claim that they are similarly-situated to the other potential members of the proposed collective action. This evidence, known as a “modest factual showing” and universally recognized as a low threshold to meet, often takes the form of affidavits or declarations from the plaintiffs and other employees, as well as other evidence such as time or payroll records. If the plaintiffs can make this modest factual showing, the court will conditionally certify the collective action, allowing the plaintiffs to send notice to other potentially similarly-situated employees and invite them to join the collective action by filing opt-in consent forms with the court per 29 U.S.C. § 216(b). The second stage of the collective action certification process occurs after a group of potential collective action members join the action. At this stage, and after discovery is completed, the court conducts a more thorough analysis of the plaintiffs’ claims and the evidence they have provided to determine whether the plaintiffs are

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indeed similarly-situated to the other members of the conditionally certified collective action. This analysis typically involves a more detailed examination of the plaintiffs’ job duties, the nature of their claims, and the evidence they have provided to support their claims. It also often involves a judgment as to whether the case can be managed effectively on a representative basis. This analysis takes place after the employer- defendant seeks decertification of the collective action, although in some cases plaintiffs will seek final certification independently. This two-step process was, until recent years, almost universally employed by federal courts, and continues to be the approach used in most federal courts today. Recently, however, two decisions in the Fifth and Sixth Circuits have revamped the FLSA certification procedure and increased the burden plaintiffs must meet before certification occurs in those jurisdictions. The Fifth Circuit, in 2021, abandoned the two-stage certification process for FLSA cases in its decision in Swales, et al. v. KLLM Transport Services, L.L.C ., 985 F.3d 430, 436 (5th Cir. 2021). In 2023, the Sixth Circuit joined the Fifth Circuit in jettisoning the traditional two-stage certification approach for certifying a FLSA collective action in its decision of Clark, et al. v. A&L Homecare & Training Center, LLC , 68 F.4th 1003 (6th Cir. 2023). However, the Sixth Circuit expressly declined to adopt the standard utilized by the Fifth Circuit, and instead instituted an entirely new, stricter certification analysis. As a result, there are now three different standards utilized to certify FLSA collective actions throughout the federal court system, increasing the possibility that the U.S. Supreme Court will eventually weigh in on the issue. In 2024, the plaintiffs’ bar continued its long-running success in achieving conditional certification in FLSA cases. Once again, plaintiffs’ motions for conditional certification were granted in a large majority of cases, thereby continuing to demonstrate the ease with which the plaintiffs’ bar can satisfy the low evidentiary threshold for conditional certification. Of the 157 total motions for conditional certification filed in federal courts, the plaintiffs won conditional certification 125 times, or at a rate of 80% while 32 motions were denied. This is slight increase when compared against the statistical totals in 2023, when the plaintiffs’ bar won 75% of first stage conditional certification motions, but a decrease from the 2022 and 2021 numbers, when the plaintiffs’ bar secured a success rate of 82% and 84% of such motions respectively.

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Regarding decertification motions, employers achieved less success in 2024 then they did in 2023. In 2024, 15 decertification decisions were issued, and plaintiffs prevailed in 10 cases while defendants achieved decertification in 5 decisions. The plaintiffs’ success rate of 67% is higher than their 2023 success rate of 56%, compared to 50% in 2022.

Once again, continuing a recent trend, the top jurisdictions for FLSA-related litigation, and those perceived as most plaintiff-friendly, are the Second, Fourth, and Ninth, Circuits.

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Given the Sixth Circuit ’ s abandonment of the traditional two-step certification process, which allows the plaintiffs’ bar to conditionally certify a collective action with ease and exert substantial settlement leverage with minimal work and expense, we expected a material decrease in FLSA cases filed in that in 2024. Indeed, there were only 12 rulings on certification and decertification motions in 2024 in the Sixth Circuit, down from 22 total rulings in 2023.

II. Key Rulings In Wage & Hour Class And Collective Actions In 2024 The significant decisions in 2024 can be grouped into several categories. These include which include: (i) significant rulings from the U.S. Supreme Court and U.S. Court of Appeal for the Fifth Circuit; (ii) some progress, though general reluctance, in adopting the Swales or Clark framework to conditional certification; (iii) rulings granting conditional certification, even based on minimal evidence; (iv) rulings denying or substantially limiting conditional certification based on insufficient proof; (iv) rulings denying conditional certification based on procedural or technical arguments; (v) rulings decertifying collective actions or denying Rule 23 class certification; (vi) rulings denying decertification or granting Rule 23 class certification; and (vii) rulings adjudicating class and/or collective actions on the merits. III. Significant Rulings By The Supreme Court And Fifth Circuit Threaten To Upend Long-Standing FLSA Regulations On June 28, 2024, the U.S. Supreme Court, in Loper Bright Enterprises v. Raimondo, et al., 144 S. Ct. 2244 (2024) ( Loper Bright ), overturned the 40-year-old Chevron doctrine, which required federal courts to defer to federal agencies’ reasonable interpretations of ambiguous statues. While the underlying claim in Loper Bright was unrelated to wage and hour laws, its holding has the potential to influence all substantive areas of law reliant on agency regulations.

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The potential impact of the Loper Bright decision on the FLSA cannot be overstated. For decades, the U.S. Department of Labor (DOL) has enforced the FLSA and other wage and hour laws through extensive regulations. Those regulations enjoyed considerable deference under Chevron , and the Loper Bright decision threatens to upend long-standing FLSA regulations. The effect of Loper Bright on the FLSA is already being felt, as demonstrated by a recent decision by the Fifth Circuit invalidating an FLSA regulation regarding tip credits. In 2021, the DOL published the 80/20 Rule, a proposed regulation that established limits on the amount of time employers may require tipped employees to perform non-tipped work and still pay the lower tipped minimum wage. Under the Rule, an employer will lose the tip credit if an employee spends (i) more than 20% of their workweek on non-tipped duties or (ii) more than 30 continuous minutes per shift on non-tipped duties. In 2021, organizations representing national and local restaurant associations commenced litigation against the DOL in the U.S. District Court for the Western District of Texas seeking to permanently enjoin the DOL’s enforcement of the Rule. In July 2023, the district court in Restaurant Law Center v. U.S. Department of Labor applied Chevron deference and upheld the 80/20 Rule as a reasonable exercise of the DOL’s rulemaking authority under the FLSA. The restaurant associations appealed the decision to the Fifth Circuit. On August 23, 2024, the Fifth Circuit in Restaurant Law Center, et al. v. United States Department Of Labor, 120 F.4th 163 (5th Cir. 2024), vacated the DOL’s 80/20 Rule pursuant to Loper Bright . The Fifth Circuit noted that the 80/20 Rule was inconsistent with the statutory text of the FLSA because it impermissibly “disaggregates the component tasks of a single occupation” and thus “applies the tip credit in a manner inconsistent with the FLSA’s text.” Id. at 175. Citing Loper Bright and noting the existence of the 80/20 standard since 1988, the Fifth Circuit nonetheless was “not persuaded that the 80/20 standard, however longstanding, can defeat the FLSA’s plain text.” Id. Loper Bright is likely to augur substantial changes to the FLSA in 2025 and beyond. There are signs that the Supreme Court, may be inclined to closely examine or strike down existing FLSA regulations in a post- Loper Bright world. Last year, the Duane Morris Class Action Review covered how the Supreme Court’s decision in Helix Energy Solutions Group, Inc. v. Hewitt, et al. , 598 U.S. 39 (2023) established that highly-compensated employees cannot be paid a daily, hourly, or shift basis and satisfy the FLSA’s “salary basis” test. The dissent from Justice Kavanaugh, however, noted that the Supreme Court’s holding relied on the FLSA regulations and those “regulations themselves may be inconsistent with the Fair Labor Standards Act.” Id. at 67 (Kavanaugh, J., dissenting). Because the relevant FLSA statutory language regarding exemptions “focuses on whether the employee performs executive duties, not how much an employee is paid or how an employee is paid,” Justice Kavanaugh concluded that it was “questionable whether the Department’s regulations — which look not only at an employee’s duties but also at how much an employee is paid and how an employee is paid — will survive if and when the regulations are challenged as inconsistent with the Act.” Id. The implicit invitation to issue such a challenge, coupled with the demise of Chevron deference in Loper-Bright , may very well result in changes to longstanding regulations that are inconsistent with the statutory language of the FLSA in the coming years. 1. Some Progress Amongst General Reluctance To Adopt The Swales Or Clark Standards Recent years brought a shift away from the traditional two-step approach to conditional certification of an FLSA collective action in the Fifth and Sixth Circuits. In 2024, defendants in FLSA actions routinely advocated for courts outside of those jurisdictions to adopt the heightened Swales or Clark standards at the conditional certification stage. With limited exceptions, courts outside of the Fifth and Sixth Circuits were reluctant to jettison the traditional two-step approach. Courts within the Eleventh Circuit may be the most fertile ground for adoption of the Swales standard. In Hipp, et al. v. Liberty National Life Insurance Co ., 252 F.3d 1208 (11th Cir. 2001), the Eleventh Circuit characterized the two-stage approach as “an effective tool for district courts to use in managing these often complex cases” and suggested that courts adopt the standard, though it noted that “[n]othing in our circuit precedent, however, requires district courts to utilize this approach” and §216(b) certification “remains soundly within the discretion of

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the district court.” Id. at 1216. Since Swales was decided, including in 2024, district courts within the Eleventh Circuit have increasingly used their discretion to adopt the Swales certification analysis when confronted with a request for §216(b) certification. See , e.g. , Johnson, et al. v. Level 3 Communications, LLC, 2024 WL 3497847, at *7 (S.D. Fla. June 14, 2024) (adopting the Swales approach to FLSA certification). Courts within the Seventh Circuit similarly may be showing that it is moving away from the traditional Lusardi approach to conditional certification. In August 2024, the court in Laverenz, et al. v. Pioneer Metal Finishing, LLC, 2024 WL 3887110 (E.D. Wis. Aug. 21, 2024) , joined the fray and rejected the two-step approach to conditional certification as inconsistent with the text of the FLSA, choosing to adopt the Swales approach instead. Id. at *6. In another decision from within the Seventh Circuit entitled Esque, et al. v. DWD Co., LLC , 2024 WL 3566217 (S.D. Ind. July 29, 2024), the court expressly stated that it is “not using the two-step approach” in denying a motion for conditional certification, citing Swales approvingly, though it did not expressly adopt the Swales framework. Id. at *6-*7. Other jurisdictions steadfastly refused to embrace either Swales or Clark in 2024. The Fourth Circuit’s movement towards the Swales standard in 2023, for example, appears to have been short lived. Though the Fourth Circuit never formally adopted the Lusardi approach, district courts within the Fourth Circuit have long done so. One district court within the Fourth Circuit, in 2023, chose to apply the Swales framework to FLSA collective action certification. See Mathews, et al. v. USA Today Sports Media Group, LLC , 2023 WL 3676795, at *3 (E.D. Va. Apr. 14, 2023). In 2024, however, district courts within the Fourth Circuit uniformly declined to do so, describing Matthews as an “outlier” and applying the traditional two-step certification process. See , e.g. , Firestone, et al. v. Food Concepts, LLC , 2024 WL 578454 (D.S.C. Feb. 13, 2024) (rejecting Mathews as an “outlier”); Kneppar, et al. v. Elevance Health Companies, Inc. , 2024 WL 1156406, at *3 (D. Md. Mar. 18, 2024) (declining to depart from the two-step approach and adopting the Swales approach); Andrews, et al. v. Bojangles Opco, LLC , 2024 WL 4154825, at *3 (W.D.N.C. Sept. 11, 2024) (declining to “deviate from twenty years of established precedent” and employing two-stage approach to collective action certification) In 2024, at least fifteen federal district courts throughout the nation expressly declined to adopt the Swales or Clark approach to conditional collective action certification despite defendants’ pleas to do so, indicating courts’ reluctance to depart from their long-standing approach. See Johnson, et al. v. PHP of NC, Inc ., 2024 WL 2290590, at *5 (E.D.N.C. May 21, 2024) (rejecting Swales approach); Tay, et al. v. New York & Presbyterian Hospital , 2024 WL 4286226, at *5 (S.D.N.Y. Sept. 24, 2024) (declining to adopt the Swales or Clark framework); Norman, et al. v. Encompass Health Rehabilitation , 2024 WL 3568605, at *4 (E.D. Va. July 12, 2024) (refusing to adopt Swales or Clark ); Phillips, et al. v. Oaklawn Jockey Club, Inc ., 2024 WL 69959, at *2 (W.D. Ark. Jan. 5, 2024) (declining to adopt Swales ); Kiani, et al. v. Automatic Data Processing Inc ., 2024 WL 2831628, at *3 (D. Ariz. June 4, 2024) (rejecting Clark and Swales ); Rivera, et al. v. CHSPSC, LLC , , 2024 WL 3509701, at *3 (D.N.M. July 23, 2024) (same); West, et al. v. LaserShip, Inc ., 2024 WL 1461403, at *6 (S.D.N.Y. Apr. 4, 2024) (same); Lopez, et al. v. St. Luke’s Roosevelt Hospital Center , 2024 WL 836480, at *7 (S.D.N.Y. Feb. 28, 2024) (declining to adopt Swales ); Burrell, et al. v. Lackawanna Recycling Center, Inc ., 2024 WL 2055003, at *5 (M.D. Pa. May 6, 2024) (rejecting Swales ); Marcy, et al. v. Select Medical Corp ., 2023 WL 9074622, at *2 (M.D. Pa. Nov. 1, 2023) (rejecting Clark and Swales ); Kirkpatrick, et al. v. Greenix Holdings, LLC , 2024 WL 757158, at *3 (D. Utah Feb. 23, 2024) (rejecting Clark and Swales ); O’Brien, et al. v. Smoothstack, Inc ., 2024 WL 1356674, at *6 (E.D. Va. Mar. 28, 2024) (declining to adopt Swales ); Van Note, et al. v. International Flavors & Fragrances Inc. , 2024 WL 1994314, at *3 (C.D. Ill. May 2, 2024) (rejecting Clark and Swales ). 2. Rulings Granting Conditional Certification Motions, Even With Minimal Supporting Evidence Considering the minimal evidence required in most jurisdictions, it is not surprising that the bulk of motions seeking conditional certification in 2024 were granted, continuing a long-standing trend in the federal courts. The exact evidentiary burden required in these instances can differ significantly, which is often influenced by the case’s specific legal stage and/or facts. Typically, plaintiffs’ lawyers rely on declarations from one or more individuals who use their personal experiences to demonstrate the requisite facts and circumstances that show the plaintiff and potential collective action members are similarly-situated. However, due to the more stringent criteria for certification of a FLSA collective action set by the Fifth Circuit in 2021 and the Sixth Circuit in 2023,

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the plaintiffs in those jurisdictions must be prepared to present more comprehensive evidence to secure collective action certification. Floyd, et al. v. Stryker Corp ., 2024 U.S. Dist. LEXIS 179 (N.D. Tex. Jan. 2, 2024), is an example of a wage and hour FLSA lawsuit that demonstrates how even a single declaration offered by a plaintiff is enough to support conditional certification. The plaintiff, a customer service team member (CSR), filed a collective action alleging that the defendant failed to pay for work performed off-the-clock processing orders after shifts were over in violation of the FLSA. The court granted plaintiff’s motion for conditional certification, approving a proposed collective action that included all customer service team members and senior team members who worked at the defendant’s Flower Mound, Texas facility from January 2, 2021, to the present. The CSR’s primary responsibility was to process orders. In support of the motion, the plaintiff offered her own declaration that stated that all CSRs shared similar job duties, worked in the same location, had similar hours, and were subject to similar supervisory policies. The court opined that these factors supported conditional certification. The court found that the lack of individualized defenses also favored conditional certification, and that the defendant failed to offer any arguments establishing significantly different practices among team leads regarding overtime. The court concluded that managing the case collectively would efficiently resolve common issues and lower costs for the plaintiffs. In Correa, et al. v. NRP Food Solutions, Inc ., Case No. 24 Civ. 5220 (S.D.N.Y. Nov. 5, 2024), the plaintiff filed a collective action alleging that the defendant failed to pay all wages due in violation of the FLSA. The plaintiff filed a motion for conditional certification of a collective action, and the court granted the motion. The court found that the plaintiff made the modest factual showing necessary to establish that the plaintiff and opt-in plaintiffs were all subject to a common policy or plan that violated the law. The court ruled that the evidence that plaintiff submitted in support of the motion was sufficient for purposes of granting conditional certification. Accordingly, the court granted the plaintiff’s motion. In Tay, et al. v. The New York And Presbyterian Hospital , 2024 U.S. Dist. LEXIS 173097 (S.D.N.Y. Sept. 24, 2024), the plaintiff filed a collective action alleging that the defendant (NYPH) violated the FLSA by failing to pay for meal and rest breaks and using an unlawful rounding policy. The plaintiff filed a motion for conditional certification of a collective action, and the court granted the motion. The plaintiff sought conditional certification of a statewide group of current and former non-exempt employees working across NYPH’s network of 16 hospitals as patient care assistants, nurse assistants, and medical technicians. The defendant argued that the hospitals were single enterprises such that they operated independently. The court, however, determined that the plaintiff offered sufficient evidence of common ownership of the hospitals and central management oversight, including testimony that the workforce management system was centralized across all NYPH hospitals. The plaintiff also offered affidavits from employees claiming they were subject to the same wage policies, including receiving a single paycheck for work across different campuses. The court thus found that the plaintiff sufficiently demonstrated that NYPH operated as a single integrated enterprise. The defendant also argued that the rounding policy used at NYPH was not a common issue for all employees and that it was not used unlawfully at the hospitals. The court reasoned that at the conditional certification stage, it was only concerned with whether the named and opt-in plaintiffs shared common issues of law or fact. The court determined that the plaintiff provided evidence of a uniform rounding policy across all NYPH facilities, where employees’ clock-in and clock-out times were rounded to the nearest quarter-hour and included time records and affidavits showing how the policy negatively affected her and other employees. The court concluded that the fact that there might be individual variations in how the rounding policy affected employees did not prevent conditional certification. The court also held that the plaintiff’s declarations showed that she, and other employees, regularly worked through their meal breaks without pay were sufficient to establish that they were similarly-situated for purposes of conditional certification under 29 U.S.C. § 216(b). For these reasons, the court granted the plaintiff’s motion for conditional certification of a collective action. The plaintiff in Perry, et al. v. Kansas Star Casino, LLC , Case No. 24-CV-1183 (D. Kan. Oct. 30, 2024), filed a collective action alleging that the defendant’s tip-pool for casino workers violated the FLSA. The plaintiff alleged that workers were shorted on wages and overtime compensations because of an illegal tip pool policy. The plaintiff filed a motion for conditional certification of a collective action. The defendant elected not to oppose the motion and agreed to a stipulation relative to conditional certification. The court reviewed and analyzed the motion for conditional certification as well as the proposed stipulation and granted the plaintiff’s motion. The

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court determined that the motion surmounted the prerequisites of 29 U.S.C. § 216(b). The court granted conditional certification to a collective action consisting of “all persons employed as table games dealers and included within a tip pooling arrangement at a casino property operated by a defendant at any time from January 1, 2022 to March 8, 2024.” Id. at 1. The plaintiffs, a group of nine postal inspectors, moved for conditional certification of a collective action in Conklin, et al. v. United States Postal Service , Case No. 23 Civ. 7122 (S.D.N.Y. Oct. 31, 2024), and the court granted the motion. The plaintiffs argued that the defendant failed to compensate them for overtime hours worked during Basic Inspector Training in violation of the FLSA. The plaintiffs sought conditional certification of a collective action consisting of all present and former Postal Inspectors who have attended Basic Inspector Training since October 16, 2021. The plaintiffs submitted their own declarations in support of the motion, which averred that the defendant did not pay for overtime hours during training. The court determined that the plaintiffs made the requisite showing necessary to establish that they were similarly-situated to the other members of the proposed collective action. For these reasons, the court granted the plaintiffs’ motion for conditional certification of a collective action. Phillips, et al. v. Oaklawn Jockey Club, Inc., 2024 U.S. Dist. LEXIS 3103 (W.D. Ark. Jan. 5, 2024), is an example of the reluctance of courts to abandon the two-step conditional certification approach even when the plaintiff’s evidence is limited to a single affidavit. There, the plaintiff, a technician supervisor, filed a collective action alleging that the defendant misclassified him and others similarly-situated as exempt employees and thereby failed to pay overtime compensation in violation of the FLSA and the Arkansas Minimum Wage Act. The plaintiff filed a motion for conditional certification of a collective action, and the court granted the motion. The defendant argued that the court should apply the conditional certification standard outlined by the Fifth Circuit in Swales v. KLLM Transportation Services LLC , 985 F.3d 430 (5th Cir. 2021) which rejected the two-tier approach of conditional certification and outlined a short discovery period prior to determining if it would be appropriate to certify a collective action. The plaintiff opposed this argument and asserted that the court and every other district court in the Eighth Circuit currently applies the two-tier standard for evaluating motions to conditionally certify collective actions, and no district court in the Eighth Circuit has chosen to apply the approach outlined in Swales. Id. at 4. The court accepted the plaintiff’s argument, and applied the two-tier approach utilized by district courts in the Eighth Circuit. In support of his motion for conditional certification, the plaintiff offered his own affidavit, which contended that all slot technician supervisors were similarly-situated because they had the same job title and work duties, worked in the same location, and were subject to the same policies that resulted in violations of the FLSA during the same period. Id. at *7. The defendant argued that the plaintiff’s affidavit contained incorrect statements regarding the number of slot technician supervisors that worked at the same time as the plaintiff and the identities of employees who worked in the same position. Id. at *8. The court determined that the plaintiff made the requisite showing necessary to establish that he was similarly-situated to the proposed membership of the collective action for purposes of conditional certification. The court noted that the plaintiff’s sworn statements asserting that he and others worked in the same position in the same location during the same period and were subject to the same policies that allegedly violated the FLSA were sufficient to establish that burden. Further, the court reasoned that the defendant’s arguments went to the merits of the plaintiff’s claims, and were thus unsuitable to consider at the conditional certification stage. For these reasons, the court granted the plaintiff’s motion for conditional certification of a collective action. Even a handful of declarations can often support conditional certification, as demonstrated by Holifield, et al. v. NexusCw, Inc ., 2024 U.S. Dist. LEXIS 149038 (S.D. Cal. Aug. 20, 2024). The plaintiffs, a group of hourly recruiters, filed a motion for conditional certification of a collective action under the FLSA against the defendant, their employer. The plaintiffs argued that they demonstrated sufficient similarities among the hourly recruiters and alleged that the defendant maintained a common policy that required pre-approval for overtime, instructed them to under-report hours, and failed to track their actual hours worked. The court granted the motion. The plaintiffs asserted that they regularly worked more than 40 hours a week but were only compensated for overtime hours that had received prior approval (which was rarely granted). They contended that the nature of their work often necessitated unapproved overtime, which the defendant was aware of but ignored. In support of their motion, the plaintiff provided declarations about their experiences as recruiters, earning hourly rates between $37.50 and $38.46. The plaintiffs reported regularly working over 40 hours a week — typically 50 to 72 hours — while being instructed to record only 40 hours on their timesheets to avoid disciplinary actions. The

Wage & Hour Class And Collective Action Review – 2025

plaintiffs also supplied an offer letter, which explicitly stated the overtime approval requirements. The defendant argued that the motion should be denied because the plaintiffs had not sufficiently established that the defendant was their employer, asserting that it was their client, SunRun, who enforced the overtime policy. The plaintiffs alleged that they provided adequate declarations establishing their relationship with the defendant as their employer. The court ultimately ruled that the plaintiffs presented the requisite evidence to support their claim that they were similarly-situated to the members of the proposed collective action. Accordingly, the court granted the plaintiffs’ motion for conditional certification of a collective action. In Greene, et al. v. Cascadia Healthcare, LLC , 2024 U.S. Dist. LEXIS 188480 (D. Id. Oct. 15, 2024), the plaintiff filed a collective action alleging that the defendant’s policies – as to automatic lunch deductions, time rounding, and incorrect payroll formulas - resulted in employees not being compensated for overtime work in violation of the FLSA. The plaintiff filed a motion for conditional certification of a collective action, and the court granted in part the motion. In support of her motion, the plaintiff offered her own declaration and the declarations of three other employees, all of whom worked in various positions at different facilities and claimed they were not properly paid overtime wages due to the defendant’s policies. The defendant argued that it was not the plaintiff’s employer, as it was a holding company not directly involved in the day-to-day employment of workers at the healthcare facilities. The court noted that the defendant’s argument went to the merits of the plaintiff’s claims and was therefore not suitable for consideration at the initial stage of conditional certification. The court also considered whether the plaintiff was similarly-situated to members of the proposed collective action. The plaintiff sought conditional certification of a collective action composed of all hourly, non-exempt employees at the healthcare facilities who: (i) had an automatic meal period deduction; (ii) were subject to time-rounding policies; or (iii) received shift differentials, on-call pay, or non-discretionary bonuses from May 18, 2020, to the present. The plaintiff contended that the defendant’s automatic 30-minute meal deduction policy led to off-the-clock work for employees. The court agreed with the plaintiff that her allegations and declarations sufficiently established that she was similarly-situated to the members of the proposed collective action for the automatic meal period policy. Further, the plaintiff contended that the defendant’s time-rounding policy favored the employer by rounding time in its favor. The court rejected the plaintiff’s position. It observed that the plaintiff failed to include this claim in her complaint or collective action definition, and thus denied conditional certification of the time- rounding claim. Finally, the plaintiff asserted that the defendant failed to include shift differentials and bonuses in overtime calculations, thereby resulting in improper overtime pay. The court determined that the plaintiff’s complaint and declarations offered in support made the requisite showing required to establish that she was similarly-situated to the members of the proposed collective action members relative to the shift differential claim. The court, however, determined that it was necessary to limit conditional certification to only patient- facing employees, as the plaintiff’s allegations were based on her experience as a patient-facing registered nurse, and the supporting declarations were from employees with patient-care responsibilities. Accordingly, the court granted in part the plaintiff’s motion for conditional certification of a collective action. The court also granted the plaintiff’s motion for conditional certification of a collective action in Lawrence, et al. v. Sun Energy Services, LLC , 2024 U.S. Dist. LEXIS 186993 (W.D. Penn. Oct. 15, 2024). The plaintiff filed a collective action alleging that the defendant failed to pay employees for out-of-town travel, attending pre-shift safety meetings, and did not include quarterly bonuses in the calculation of their overtime rate in violation of the FLSA. The plaintiff filed a motion for conditional certification of a collective action, and the court granted the motion in part. In support of his motion for conditional certification, the plaintiff offered his own declaration in which he asserted that the members of the proposed collective action were field workers, who are primarily responsible for ensuring that shale gas wells are controlled, and that they were subject to uniform decisions, policies, procedures, and initiatives, including with respect to job requirements and pay provisions. Id. at *4. The defendant did not oppose conditional certification but requested that notice be sent to a narrower scope of collective actions members. The plaintiff did not oppose certifying a narrower collective group. The defendant proposed that the collective action membership be limited to “the particular pay practices claimed to be unlawful in the first amended complaint and distinguished from any other of a range of lawful pay practices not at issue in this case.” Id. at *5. The court undertook an independent analysis of the propriety of certification. It agreed with the defendant as to the scope of the proposed membership of the employees at issue and conditionally certified a collective action consisting of all current and former employees of the defendant who worked as a Greenhat, Leadhand, Roughneck, or Snubbing Operator over the previous three years and were not paid for out of town travel, were not paid for the time spent attending pre-shift safety meetings, or who did not have the amount of any quarterly bonus included in the calculation of their regular rate of pay in determining their overtime rate of

Wage & Hour Class And Collective Action Review – 2025

pay. The “bare bones” evidence necessary to satisfy the lenient two-step analysis to conditional certification is further demonstrated by Yslas, et al. v. Wal-Mart Associates, Inc., 2024 U.S. Dist. LEXIS 51834 (D. Colo. Mar. 22, 2024). The plaintiffs, a group of Sales and Training Managers (STMs) and Membership Representatives (MRs) filed a class and collective action alleging that the defendant misclassified them as exempt employees and thereby failed to pay overtime compensation in violation of the FLSA and state wage & hour laws. The plaintiffs moved for conditional certification of a collective action, and the court granted the motion. The plaintiffs submitted declarations in support of their motion, which averred that they were similarly-situated to the members of the proposed collection action because they all worked for the defendants as MRs and/or STMs; were paid by salary; on a regular basis worked in excess of 40 hours in individual work weeks; were paid only their set salary for all hours worked each week, including those over 40; and did not receive any overtime compensation for hours worked in excess of 40 in individual work weeks. Id. at *6. The defendants asserted that the plaintiffs failed to establish that they had similar job duties as other STMs, because they have not alleged that the actual experiences of other STMs were similar to their own experiences. The plaintiffs alleged that they spent their time performing non-exempt associate work at the check-out registers or otherwise performing duties which did not require the exercise of independent discretion and judgment, and therefore that they were misclassified as salary-exempt employees and should have been compensated as hourly employees entitled to overtime compensation. Id. at *7-8. The plaintiffs contended that regardless of the store location, all STMs had a single, identical job description, including identical job duties, job objectives, job responsibilities, job qualifications, language skills, manual labor capabilities and general working conditions. Id. at *9. The court observed that the plaintiffs’ allegations were fairly bare-bones, but that they sufficiently established at the modest first stage of conditional certification that they were similarly-situated to other members of the proposed collective action. Accordingly, the court granted the plaintiffs’ motion for conditional certification of a collective action. Similarly, in Rittmann, et al. v. Amazon, Inc., 2024 U.S. Dist. LEXIS 217546 (W.D. Wash. Dec. 2, 2024), the plaintiffs, a group of last-mile delivery drivers, filed a collective action alleging that the defendant misclassified drivers as independent contractors and denied them minimum wages and overtime pay in violation of the FLSA. The plaintiffs filed a motion for conditional certification of a collective action, and the court granted the motion. The defendant argued that the plaintiffs failed to submit sufficient evidence that they were similarly-situated to the members of the proposed collective action. The plaintiffs sought conditional certification of a collective action consisting of all Amazon Flex drivers since October 27, 2013. The plaintiffs offered their own declarations and a copy of the defendant’s standard Terms of Service (TOS), which they argued applied to all last-mile drivers, misclassified them as independent contractors, and failed to provide adequate compensation. The defendant asserted that individual differences in the drivers’ experiences should preclude conditional certification of the collective action. The plaintiffs contended that the members of the proposed collective action were similarly- situated because they all worked under Amazon’s Flex program, which applied the same TOS to all drivers. The plaintiffs asserted that the TOS contained two key components, including: (i) the classification of drivers as independent contractors; and (ii) the terms governing service fees that did not provide for minimum wage or overtime pay. The defendant acknowledged that these two terms were consistent across the TOS, but argued that the TOS changed over time, particularly related to the arbitration clauses contained therein, and that these differences should preclude conditional certification of a collective action. The defendant also asserted that the plaintiffs’ experiences and those of the proposed collective action members were too varied, as they different in what they delivered, where they drove, and how the deliveries were packed. The plaintiffs countered that the differences were irrelevant at the conditional certification stage. The court agreed with the plaintiffs. It found that the plaintiffs established that all members of the proposed collective action were subject to the same allegedly unlawful policy (the defendant’s TOS). Accordingly, the court ruled that the plaintiffs made the requisite showing necessary to establish that they were similarly-situated to the proposed collective action for purposes of conditional certification, and granted the plaintiffs’ motion. Even when some discovery has taken place prior to a motion for conditional certification, some courts are unwilling to consider merits-related issues at the conditional certification stage. In Orbetta, et al. v. Dairyland USA Corp. , 2024 U.S. Dist. LEXIS 123253 (S.D.N.Y. July 17, 2024), for example, the plaintiffs, a group of delivery drivers, filed a collective action alleging that the defendant failed to pay overtime compensation and minimum wage in violation of the FLSA. The plaintiffs filed a motion for conditional certification of a collective action, and the court granted the motion. The plaintiffs sought conditional certification of a collective action

Wage & Hour Class And Collective Action Review – 2025

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