Wage & Hour Class And Collective Action Review – 2025

submitted his own declaration in which he alleged that all employees were subject to the same allegedly illegal policy. The defendant, however, argued that the plaintiff failed to offer any evidence that all non-exempt employees are eligible for non-discretionary bonuses and/or that all non-exempt employees worked overtime. Id. at *5-6. The court opined that the plaintiff made the requisite showing necessary to establish that he was similarly-situated to non-exempt employees who worked overtime, but that he did not make such a showing as to all non-exempt employees. The court concluded that non-exempt employees who did not work overtime or who were not paid a non-discretionary bonus would not have had their overtime pay affected, and therefore could not be members of the proposed collective action. Id. at *7. For these reasons, the court granted the plaintiff’s motion but limited the collective action to non-exempt employees who had worked overtime during the relevant time-period. Offering evidence demonstrating that certain sub-groups of the proposed collective action would not be entitled to overtime also can limit the scope of a conditionally certified collective action. For example, in Ni, et al. v. HSBC Bank USA, N.A., 2024 U.S. Dist. LEXIS 15216 (S.D.N.Y. Jan. 29, 2024), the plaintiff, a bank teller, filed a class and collective action alleging that the defendant failed to pay overtime compensation, failed to pay for meal breaks, and failed to pay for rest breaks in violation of the FLSA and the New York Labor Law. The plaintiff filed a motion for conditional certification of a collective action, and the court granted in part and denied in part the motion. The defendant operated approximately 200 retail branches and employed approximately 490 Personal Bankers and 550 Tellers. In support of her motion, the plaintiff offered her own declaration in which she alleged that she worked five days a week and was scheduled to work either from 8:00 a.m. to 5:00 p.m. or from 9:00 a.m. to 6:00 p.m., that she always worked through lunch but was not paid for that work time, and that she would clock out for short rest breaks, and was not compensated for those breaks in violation of federal and state wage laws. Id. at *3-4. The plaintiff also asserted that during the COVID-19 pandemic, she and other tellers were required to work after-hours to solicit new customers via phone calls. In support of these allegations, the plaintiff submitted various after-hours text conversations with another Personal Banker or with potential clients. The plaintiff also provided information regarding two other Tellers and another Personal Banker with whom she worked who she observed working through meal breaks and who shared with her that they were instructed by their common manager not to record overtime hours. Id. at *6. The plaintiff also provided time records of Personal Bankers that covered 171 employees in 53 branch locations across New York, New Jersey, Pennsylvania, Maryland, California, Florida, and Washington for the time period of October 2019 to October 2020. With respect to alleged violations related to uncompensated break time, the plaintiff pointed to 46 employees who logged out for 20 minutes or less and thus were not compensated. The court determined that the defendant’s nationwide written policies stated that employees were entitled to one paid 15-minute, duty-free rest break every four hours and that rest breaks count as hours worked and were pa Id. Id. at *15. The plaintiff, however, averred that managers across the country routinely violated these nationwide policies by requiring employees to clock out for break time so that it was unpaid, to work through purported lunch breaks, and to not record hours worked outside regularly scheduled hours. Id. at *16. The court ruled that at this first stage of conditional certification, the plaintiff met the modest burden to suggest that Personal Bankers in all the states sampled were similarly-situated insofar as they might have been subjected to a common policy that failed to compensate them for breaks of 20-minutes or less. The court also found that the plaintiff met her modest burden to demonstrate Personal Bankers across the country may not have been paid appropriately for breaks and may have worked off-the-clock because they were subjected to a common policy where managers disregarded written timekeeping policies and forced Personal Bankers to work through purported lunch breaks and off-the- clock after hours. Id. at *20. However, the court found that the plaintiff did not meet this burden with respect to Tellers because as defendant argued and demonstrated, Tellers often worked part-time, and thus had no overtime claims. As a result, the court granted the plaintiff’s motion for conditional certification of a collective action of all Personal Bankers during the relevant time period and denied it as to Tellers. Litigating in a jurisdiction with a more stringent approach to conditional certification, such as the Sixth Circuit’s requirement that a plaintiff demonstrate a “strong likelihood” that the plaintiff is similarly-situated in relation to the membership of the purported collective action, can also prevent conditional certification in the absence of a common policy. In Piddock, et al. v. Community Living Network, 2024 U.S. Dist. LEXIS 87706 (E.D. Mich. May 15, 2024), the plaintiff filed a collective action alleging that the defendant failed to pay her and other Direct Care Staff for overtime compensation in violation of the FLSA. The plaintiff filed a motion for conditional certification of a collective action, and the court denied the motion. The plaintiff sought to certify a collective action consisting of current and former Direct Care Staff who worked with Medicaid-funded Self-Directed Services programs for the

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