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

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