Wage & Hour Class And Collective Action Review – 2025

cannot be certified for claims that were not explicitly pleaded in the operative complaint. Regarding the CMWA claims, the court concluded that the plaintiffs attempted to introduce new theories of liability for failing to provide regularly scheduled sleep periods and meal breaks in their motion for class certification. The court opined that the allegations in the complaint only focused on interruptions during meal and sleep breaks, not on the failure to provide scheduled breaks. Therefore, the court determined that it could not certify a Rule 23 class based on theories of liability that were not part of the pleaded claims. The court also determined that there were deficiencies in the plaintiffs’ evidence and arguments to support both the Rule 23 class certification motion and the FLSA collective action certification motion. It noted that the plaintiffs’ submissions did not sufficiently establish that there were common questions of law or fact among the class members that would justify certification under Rule 23 or under the FLSA’s collective action provision. For these reasons, the court denied the plaintiffs’ motion. Aquino, et al. v. Uber Technologies, Inc.., 2024 U.S. Dist. LEXIS 140167 (S.D.N.Y. Aug. 7, 2024), is a good example of how employers can introduce limited merits-related evidence to successfully oppose conditional certification. In that case, the plaintiff, a former Uber driver, filed a collective action alleging that the defendant misclassified drivers as independent contractors and thereby failed to pay overtime compensation and minimum wages in violation of the FLSA and New York Labor Law. The plaintiff filed a motion for conditional certification of a collective action, and the court denied the motion. Initially, the court found the plaintiff failed to establish a wage violation, as he acknowledged being paid above the minimum wage and failed to sufficiently demonstrate that waiting time logged in to the Uber app should count as work hours. After amending his complaint, the plaintiff asserted that he worked three days in April 2022, driving limited miles and earning a small amount for those rides. During discovery, it was revealed that on one day, April 19, 2022, the plaintiff drove passengers for 48 minutes and received $17.32 for two rides. On two other days, the plaintiff made deliveries for Uber Eats and declined many ride requests. Additionally, the court found that most of the plaintiff’s claimed business expenses were actually covered by his mother and were not out of pocket expenses. At a subsequent court conference, the plaintiff’s attorney acknowledged that he might not have a federal wage claim and that his damages were likely below the threshold for diversity jurisdiction. As a result, the court expressed doubts about the viability of the plaintiff’s claims and concluded that he had not met the necessary criteria for conditional certification under the FLSA. For these reasons, the court denied the plaintiff’s motion for conditional certification. Even if plaintiffs can meet the low threshold for conditional certification, employer defendants can often use the limited evidence presented by plaintiffs to limit the scope of a collective action, as demonstrated by Andrews v. Bojangles OpCo, LLC, 2024 U.S. Dist. LEXIS 163824 (W.D.N.C. Sept. 11, 2024). Bojangles is a chain of fast- food restaurants, operating approximately 300 locations primarily in the Southeastern United States. The plaintiffs, two former Bojangles Assistant General Managers (AGMs) filed a complaint alleging that Bojangles willfully violated the FLSA by classifying AGMs as overtime-exempt administrators while simultaneously requiring them to spend the bulk of their job on tasks typically assigned to hourly employees. Id. at *2. After the plaintiffs filed their complaint, two additional AGMs filed consents to join the lawsuit. Id. In their attempt to conditionally certify the collective action, the plaintiffs argued that the putative collective members performed the same or substantially similar primary job duties, including the non-exempt tasks of cashiering, cooking, cleaning, and restocking products. Id. Furthermore, AGMs were required to cover hourly associates’ shifts when they were absent from work and that approximately 90% of AGMs’ time was spent doing manual work and customer service duties — the same tasks assigned to hourly associates. Id. at *8. The plaintiffs also claimed they lacked authority over personnel decisions, considering General Managers were required to make final decisions on employment matters. Id. at *9. Even though the AGMs were classified as salaried employees and did not receive overtime compensation for any hours worked over 40 hours per week, they were scheduled to work a 50-hour workweek, which often resulted in working more than 50 hours. Id. at *9. Furthermore, AGMs who worked at more than one Bojangles location expressed that the job duties performed as an AGM did not change from one location to another. Id. at *10. The court granted in part the motion for conditional certification. The plaintiffs sought conditional certification relative to all AGMs who worked at any Bojangles location nationwide since September 19, 2020. Id. at *6. In response, Bojangles argued that the plaintiffs’ evidence to support its nationwide collective action related to only a small fraction of the geographic areas in which Bojangles operates. Id. at *12. Specifically, Bojangles observed that of approximately 300 restaurant locations in multiple states, only nine North Carolina locations were represented in the plaintiffs’ pleadings. Id. Other AGMs mentioned by the plaintiffs also worked at locations within North Carolina. Id. The plaintiffs attempted to further persuade the court of the viability of a nationwide collective action by pointing to previous conditional

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