Wage & Hour Class And Collective Action Review – 2025

situated employees were paid a salary and treated as exempt from overtime pay. In support of her motion, the plaintiff submitted her own declaration, and the declarations of several other nurses and managers. The defendant argued that the plaintiff failed to show that she and the other members of the putative collective action were similarly-situated because the employees varied by title, team membership, levels of seniority and supervision, levels of interaction with healthcare providers, types of guidelines and criteria they employ to do their work, and types of training they receive and provide. Id. at *10. The court reasoned that although members of the proposed collective action had different job titles, the declarations and transcripts offered by the plaintiff demonstrated that the collective action members shared the same essential or primary job duties. Moreover, the court opined that the plaintiff’s statements were corroborated by testimony from managers indicating that nurses assigned different titles bore the same primary responsibilities, were treated as salaried employees exempt from overtime pay, were not required to track their number of hours worked and were therefore subject to the same employment practices by Defendant relevant to Plaintiff’s FLSA claim. Id. at *11. Accordingly, the court found that the plaintiff made the requisite showing necessary to establish that she was similarly-situated to members of the proposed collective action and granted the plaintiff’s motion. Common pay policies are often used to establish the substantial similarity necessary for conditional certification, as demonstrated by Latipov, et al. v. AN Enterprises, Inc., 2024 U.S. Dist. LEXIS 21357 (N.D. Ill. Feb. 7, 2024). The plaintiffs, a group of delivery drivers, filed a collective action alleging that the defendant misclassified drivers as independent contractors and thereby failed to pay them overtime compensation and the minimum wage, and that the defendant made unlawful deductions from their paychecks in violation of the FLSA. The plaintiffs filed a motion for conditional certification of a collective action of all delivery drivers over the previous three years. The court granted the motion. The defendant argued that: (i) the plaintiffs lacked standing to join to proposed collective action; (ii) the plaintiffs were not similarly-situated to the members of the proposed collective action; and (iii) the plaintiffs failed to show that they were subjected to a common policy which violated the FLSA. The court rejected all of the defendants’ arguments. The court first determined that as to the standing argument, the question was one of whether an employer-employee relationship existed between the parties, which the court stated was a merits issue not appropriate for consideration at the first step of conditional certification. Id. at *14. Next, the defendants asserted that the plaintiffs were not similarly-situated to the collective action membership because some drivers leased trucks owned by the company, while other drivers worked as “owner-operators” using their own vehicles and did not suffer deductions from their wages for truck payments. Id. The court determined that the plaintiffs all had the same core responsibilities, all were drivers, and all made deliveries. The court reasoned that the collective action members need not be identical, only similar, for purposes of conditional certification. Finally, the court ruled that the plaintiffs also submitted sworn affidavits explaining the existence of a common policy that the defendants made deductions from their pay for truck lease payments, and for expenses such as accidents, tolls, or delivery fees, which made their pay drop under minimum wage for all hours worked. The court found that the plaintiffs made the modest factual showing required at the conditional certification stage that there was a group of similarly-situated individuals working as drivers and subject to the same allegedly unlawful policy. For these reasons, the court granted the plaintiffs’ motion for conditional certification of a collective action. Employers attempting to attack the merits of plaintiffs’ claims are generally unsuccessful at the conditional certification stage, even if substantial differences exist in the underlying factual circumstances of plaintiffs’ claims. In Dye, et al. v. Knight Hawk Holdings, LLC , 2024 U.S. Dist. LEXIS 110201 (S.D. Ill. June 21, 2024), for example, the plaintiff filed a class and collective action alleging that the defendant failed to pay for time spent donning and doffing safety gear and gathering tools in violation of the FLSA and the Illinois Minimum Wage Law. The plaintiff filed a motion for conditional certification of a collective action, and the court granted the motion. The plaintiff’s proposed collective action included all current and former hourly employees engaged in underground mining for the defendants in Illinois over the past three years who worked more than 40 hours in a workweek. The defendant contended that the employees were not similarly-situated because they worked in different mines with varying time-keeping procedures. However, the court determined that such differences did not preclude conditional certification because the key issue was whether the employees shared a common claim regarding uncompensated donning and doffing time. The court noted that the plaintiff’s declarations from employees established that the employees were performing similar work, were all required to wear the same safety equipment, and were not paid for time spent donning and doffing the equipment or for time spent getting and returning tools. The defendants also argued that the time spent on donning and doffing was too minimal to be compensable under the FLSA’s de minimis doctrine. The court stated that the defendant’s argument went to

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