Wage & Hour Class And Collective Action Review – 2025

significant issues with the plaintiff’s evidence. First, the court stated that the affidavits lacked sufficient details and contained testimony that had discrepancies with the plaintiff’s allegations. As to the provided work scheduled, the court explained that they were written in Mandarin Chinese, and thus, it could not use them as evidence without a certified translation. Finally, as to the pay records, the court noted that they failed to contain any information demonstrating how any co-workers were paid, as they only contained information regarding the plaintiff’s own pay information. Accordingly, the court ruled that the plaintiff failed to make the required modest factual showing to establish that he and his co-workers were similarly-situated for purposes of conditional certification. For these reasons, the court denied the plaintiff’s motion. Effectively showing the lack of evidence of a common policy or practice that is unlawful, such as a uniform overtime or timekeeping policy, can also be an effective method to defeat conditional certification. In Calloway, et al. v. AT&T Services, 2024 U.S. Dist. LEXIS 57008 (N.D. Ill. Mar. 28, 2024), the plaintiffs, a group of customer service representatives, filed a collective action alleging that the defendant failed to pay for overtime work, despite knowing about the overtime through its automated tracking systems. The plaintiffs filed a motion for conditional certification of a collective action, and the court denied the motion. The court found that the plaintiffs failed to demonstrate that the defendant had a uniform nationwide policy for tracking and paying overtime. Instead, the court determined that the plaintiffs’ evidence showed significant variations in how overtime was reported and compensated across different call centers and regions. Some regions automatically paid overtime based on logged hours, while others required employees to self-report or use different reporting systems. The court ruled that the demonstrated diversity in practices established that not all members of the proposed collective were similarly-situated regarding FLSA violations. Accordingly, the court denied the motion. Challenging the extent of a plaintiff’s evidence as limited to a particular facility or geographic region can limit the scope of a collective action. In Cooke, et al. v. Frank Brunckhorst Co., LLC, 2024 U.S. Dist. LEXIS 89669 (E.D.N.Y. May 18, 2024), represents a rare victory for a defendant employer that successfully persuaded a court to re-visit its prior approval of a collective action and subsequently narrow the scope of the putative collective action. There, the plaintiff, an hourly employee, filed a collective action alleging that the defendant failed to pay him and other similarly-situated employees minimum wage and overtime compensation in violation of the FLSA. The court previously had granted the plaintiffs’ motion for conditional certification of a collective action. The defendant moved for reconsideration of the court’s ruling, and the court granted in part and denied in part the motion. The defendant argued that the plaintiff’s claims were insufficient because he was paid above the minimum wage and received proper overtime pay. The court found that the defendant did not meet the stringent standard for reconsideration. However, the court determined that the scope of the collective action was overbroad. It previously conditionally certified a collective action composed of “all former and current hourly workers of Defendant at any point in time between August 23, 2020 and August 23, 2023.” Id. at *25. The defendant asserted that it should be limited to those employees paid on a bi-weekly frequency of pay at only the defendant’s Brooklyn Facility. The court reasoned that the scope of the proposed collective action was overbroad as the plaintiff did not reply to the defendant’s request or provide any evidence that he was similarly- situated to any employee outside of the Brooklyn facility. Accordingly, the court determined that the defendant offered a compelling reason to limit the scope of the putative collective action, and thereby modified its earlier ruling to limit the scope of the collective action to all former and current hourly non-exempt employees paid on a bi-weekly frequency of pay at the Brooklyn Facility at any point in time between August 23, 2020 and August 23, 2023. Similarly, Bingham, et al. v. Doterra International, LLC, 2024 U.S. Dist. LEXIS 81504 (D. Utah May 3, 2024), is an example where the defendant successfully challenged the scope of a proposed collective action based on the evidence offered in support of conditional certification. The plaintiff filed a collective action alleging that the defendant failed to include non-discretionary bonuses in overtime pay calculations 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 contended that employees were entitled to a Performance bonus and an Upsell bonus that certain employees could earn for each product sold in addition to the product about which the customer initially inquired. Id. at *2. The Performance bonus was triggered every four months for meeting basic performance requirements. The plaintiff alleged that the defendant’s management informed employees in a meeting that the company was aware of FLSA violations related to its failure to include non-discretionary bonuses in its overtime pay calculations. However, the plaintiff alleged that after the disclosure, the defendant decided not to correct the error, and decided to actively conceal any underpayments from employees. In support of his motion, the plaintiff

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