Wage & Hour Class And Collective Action Review – 2025

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

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