Wage & Hour Class And Collective Action Review – 2025

the merits of the plaintiff’s claims, and therefore was not suitable to consider at the conditional certification stage. As a result, the court found that the plaintiff made the requisite showing necessary to establish that he was similarly-situated to the membership of the proposed collective action. For these reasons, the court granted the plaintiff’s motion. Another example of merits-related issues being insufficient to defeat conditional certification is Bunger, et al. v. Surge Staffing, LLC , 2024 U.S. Dist. LEXIS 100912 (S.D. Ohio June 6, 2024), in which the court refused to consider “merits” issues at the conditional certification stage. There, the plaintiff, a Staffing Specialist, filed a collective action alleging that the defendant failed to pay overtime compensation in violation of the FLSA. The plaintiff filed a motion for conditional certification of a collective action, and the court granted the motion. The plaintiff asserted that her responsibilities included reviewing resumes, interviewing candidates, and matching their skills to client needs. However, she did not have the authority to make final hiring decisions without approval from her supervisor. The plaintiff alleged that she was paid on a salary basis, the defendant did not compensate her for overtime work beyond 40 hours a week. As a result, her pay varied based on the number of hours she worked, and she was not paid for hours for which she needed to leave early or was late to work. Fourteen additional individuals joined the case as opt-in plaintiffs. In support of her motion, the plaintiff submitted her own sworn declaration, declarations from 11 opt-in plaintiffs, and statements from the defendant’s former senior executive. The court opined that the evidence indicated that Staffing Specialists across various branches experienced similar pay practices and performed comparable duties. The defendant argued that any salary reductions were due to exhausted paid time off rather than an unlawful practice. The defendant also argued that the Staffing Specialists were not paid in a uniform manner, and therefore, were not all similarly- situated. The court found that the defendant’s arguments went to the merits of the plaintiff’s claims and were therefore not suitable to address at the first stage of conditional certification. The court determined that the plaintiff made the requisite showing necessary to establish that she was similarly-situated to other Staffing Specialists for purposes of conditional certification. Accordingly, the court granted the plaintiff’s motion. 3. Rulings Denying Or Substantially Limiting Conditional Certification Based On Insufficient Proof Although the plaintiffs’ wage & hour bar frequently prevails in obtaining conditional certification, over the past year employers were able to defeat these motions in part by demonstrating the flaws or weaknesses in the evidence submitted by the plaintiffs. These types of successful defenses typically concentrate on the declarants’ limited personal knowledge, particularly as it pertains to the existence of uniform policies affecting the members of the proposed collective action. Additionally, employers frequently contest the ability of the plaintiffs’ evidence to show that the proposed collective action membership shares identical job duties, responsibilities, or autonomy. In some instances, employers have successfully challenged conditional certification motions by introducing evidence to refute the plaintiffs’ assertions, or by leveraging settlements from similar cases to obstruct certification as to workers covered by those settlements. Even where defendants have been unable to fully prevent certification, these defenses have been able to limit the scope of collective actions to certain geographic regions or job titles. Finally, the Sixth Circuit ’ s decision in Clark in 2023 also provides an early glimpse into how courts will apply the Sixth Circuit ’ s new, more stringent standard for FLSA conditional certification. Often, an employer’s best defense to conditional certification is establishing as many differences as possible between the purported class and collective action members in order to demonstrate they are not similarly- situated. Johnson, et al. v. Level 3 Communications, LLC, 2024 U.S. Dist. LEXIS 132847 (S.D. Fla. June 14, 2024), is illustrative of that angle of attack. There, the plaintiff, a former Field Technician at Level 3 Communications, LLC, filed a class and collective action against his former employer, claiming unpaid wages under Florida law and failure to pay overtime under the FLSA. The plaintiff filed a motion to certify a class action for his common law wage claim and a collective action for his FLSA claim. The plaintiff worked as a salaried, non-exempt employee until his resignation in August 2022. Since initiating his lawsuit, several individuals have opted to join the FLSA collective action, though some were later found to be employees of other subsidiaries or inactive during the relevant period. Notably, the plaintiff was the only non-union employee among the opt-ins, and the rest were union members covered by different collective bargaining agreements. The plaintiff alleged that technicians were required to be on-call for a week each month and must respond to calls, but they were not compensated for this time. The plaintiff contended that non-union employees like him lacked specific

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