Wage & Hour Class And Collective Action Review – 2025

concluded that the plaintiffs had not demonstrated that the proposed class was so numerous that joinder of all members would be impracticable. For this reason, the court denied the plaintiffs’ motion for class certification. Despite the fact that sometimes a single declaration is enough to support conditional certification, if the declaration consists largely of hearsay and fails to establish that the plaintiff is similarly-situated in relation to the members of the proposed collective action he or she seeks to represent, courts may deny conditional certification, as was the case in Lin, et al. v. Lee’s House Restaurant, Inc., 2024 U.S. Dist. LEXIS 92308 (E.D. Penn. May 23, 2024). There, the plaintiff, a delivery driver, filed a collective action alleging that the defendant failed to pay minimum wages and overtime compensation in violation of the FLSA. The plaintiff asserted that he worked 12 or more hours per day, six days per week and was paid a flat rate monthly compensation. The plaintiff filed a motion for conditional certification of a collective action, and the court denied the motion. In support of his motion, the plaintiff submitted an affidavit describing the hours and compensation for several other alleged co-workers, which averred that he knew the co-worker’s relevant hours and compensation by talking to the employees. Id. at *2. The court found that the plaintiff’s lone affidavit “is mere hearsay, lacking factual assertions to justify plaintiff’s claims.” Id. at *5. The court stated that even if it were to consider the plaintiff’s affidavit, it did not satisfy the “modest factual showing” standard. Id. Further, the court reasoned that the plaintiff sought conditional certification of a collective action that consisted of workers in a number of different roles within the restaurant, and the record revealed a number of dissimilarities between each of the different job duties. The court also observed that the plaintiff’s affidavit averred that, “certain employees are compensated through a fixed salary, while others are paid an hourly rate” and “the earnings of some employees are augmented by customer tips, whereas others, due to the nature of their roles not requiring direct customer interaction, do not receive tips.” Id. at *6. The court concluded that the plaintiff failed to establish that he was similarly-situated to the members of the proposed collective action and denied the plaintiff’s motion for conditional certification. Where an employer defendant can demonstrate that the proposed class is limited to a relatively small number of individuals, it can use numerosity to defend against certification of a collective action and against possible class certification. In Ramirez, et al. v. Snapmedtech, Inc., 2024 U.S. Dist. LEXIS 135029 (N.D. Tex. May 22, 2024), for example, the plaintiffs filed a collective and class action alleging that the defendant failed to pay for all hours worked in violation of the FLSA and state wage & hour laws. The plaintiffs filed a motion for class certification of the state law claims, and for conditional certification of the FLSA claims. The court denied the motion. The defendant was a staffing company that specialized in providing clinicians, including travel nurses, to healthcare facilities and testing sites based on contractual agreements. Once a nurse agreed to an assignment, they received a Confirmation of Assignment outlining job expectations, compensation, and onboarding requirements. For the onboarding process, nurses submitted documents such as drug tests, background checks, and licensing information. In August 2020, SnapNurse secured a contract with the State of Florida to staff Covid testing sites in Fort Lauderdale. The company recruited several nurses, including the plaintiffs, who were informed about the assignment via a SnapNurse Covid Mission Information Sheet. This sheet detailed the contract’s duration, travel dates, and required orientation, as well as compensation and conditions for guaranteed hours. Upon arrival in Fort Lauderdale, nurses reported to the Embassy Suites hotel for onboarding. However, plaintiffs experienced significant disorganization and delays. Many stood in long lines or faced confusion, and ultimately, SnapNurse did not provide any work to the plaintiffs. Instead, on August 25, 2020, SnapNurse sent a text message stating that all positions for the assignment had been filled, and nurses who had not received a mission were instructed to check out of the hotel. The court determined that both conditional certification and class certification should be denied because the plaintiffs failed to meet the numerosity requirement. The court ruled that the plaintiffs’ proffered testimony about the numbers of nurses who were present and the numbers who were dismissed without work was uncertain and speculative. Id. at *26. The court also noted that the defendant’s Rule 30(b)(6) deponent could not answer the question of how many nurses were recruited and how many were provided to the State of Florida. Accordingly, the court denied the plaintiffs’ motion for class certification and for conditional certification of a collective action. While FLSA collective action certification does not include a Rule 23 numerosity requirement, an employer may be able to defeat conditional certification by showing that plaintiff failed to prove that a sufficient number of employees desire to opt in to the collective action, as in Parker, et al. v. Perdue Foods, LLC, 2024 U.S. Dist. LEXIS 45542 (M.D. Ga. Mar. 14, 2024). Perdue, “the third largest boiler chicken company in the country,” contracts with approximately 1,300 so-called “growers” — farmers who raise chickens for Perdue — throughout

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