Wage & Hour Class And Collective Action Review – 2025

arbitration agreements, failed to meet the numerosity requirement because the plaintiffs did not assert the number of class members in the sub-class. For these reasons, the Magistrate Judge recommended denying plaintiffs’ motion for class certification and their motion to strike expert opinion evidence. Similarly , Sears, et al. v. WellNow Urgent Care, P.C., 2024 U.S. Dist. LEXIS 126405 (N.D. Ill. July 17, 2024), demonstrates how an employer’s implementation of arbitration agreements can narrow the pool of potential opt- in plaintiffs. The plaintiff filed a collective action alleging that the defendant violated the FLSA. The plaintiff moved for conditional certification of a collective action, and the court granted in part and denied in part the motion. The plaintiffs initially sought certification of a collective action consisting of all non-exempt employees. The defendant filed a Rule 16 motion asserting that any workers who had signed arbitration agreements with class and collective action waivers should be excluded from the scope of the potential collective action. The court agreed with the defendant’s position. The court ruled that any employee who signed an arbitration agreement with the defendant would be excluded from the conditionally certified collective action. The court defined the collective action as “all current and former WellNow employees with direct patient care duties” and therefore narrowed the scope of employees at issue. Accordingly, the court granted in part and denied in part the plaintiff’s motion for conditional certification of a collective action. Another case demonstrating how arbitration agreements can materially narrow a collective action is Lumpkins, et al. v. Entrust Solutions Group, LLC, 2024 U.S. Dist. LEXIS 126411 (N.D. Ill. July 16, 2024). The plaintiffs filed a collective action alleging that the defendant failed to pay overtime compensation in violation of the FLSA. The plaintiffs filed a motion for conditional certification of a collective action, and the court granted in part the motion. The plaintiffs sought to conditionally certify a collective action consisting of “all current and former Inspectors who worked for, or on behalf of, Entrust Solutions Group, LLC f/k/a EN Engineering, LLC (Entrust) who were paid under Entrust’s minimum guarantee plus extras pay plan at any time during the past 3 years.” Id. at *2. The plaintiffs asserted that the policy was unlawful because inspectors regularly worked more than 40 hours a week but did not receive overtime compensation at 1.5 times their regular pay. In support of his motion, the plaintiffs offered their own declarations in which they were all paid in the same way and did not receive overtime pay for hours worked over 40 in a workweek, and that all inspectors were paid in the same manner. The defendant argued that employees with arbitration agreements should not be included in the collective action. The court agreed with the defendant’s argument. Therefore, the court limited the collective action to those current and former inspectors subject to the alleged unlawful policy who did not have arbitration agreements with the defendant. Accordingly, the court granted in part the plaintiffs’ motion for conditional certification of a collective action. 5. Rulings Decertifying Collective Actions Or Denying Rule 23 Class Certification In 2024, employers successfully decertified collective actions or defended against Rule 23 class certification by primarily employing two defense strategies. First, employers effectively showed significant variations in the experiences or job duties among the members of the proposed collective action and persuaded the court that collective actions were impractical due to the lack of a uniform policy or practice affecting all collective action members. Second, employers persuasively argued that the necessity for individualized inquiries regarding each collective action member ’ s circumstances would impede the ability to move forward as a class action or continue as a collective action, thereby requiring decertification. Demonstrating the lack of an unlawful common policy or practice perpetuated by a defendant is an effective way to achieve decertification. In Roy, et al. v. FedEx Ground Package System, 2024 U.S. Dist. LEXIS 57669 (D. Mass. Mar. 29, 2024), for example, the plaintiffs, a group of delivery drivers, filed a collective action alleging that the defendant misclassified drivers as independent contractors and thereby failed to pay overtime compensation in violation of the FLSA. The court previously had granted conditional certification of a collective action. The defendant moved to decertify the collective action, and the court granted the motion. The defendant contended that the plaintiffs’ claims could not proceed collectively because there was no common policy or practice by FedEx that led to the alleged violations of wage laws. The drivers worked for various independent service providers, each with different employment terms such as hours, wages, and types of delivery vehicles. Therefore, the defendant asserted that liability and damages must be individually proven, and individualized defenses presented against each plaintiff. FedEx contended that maintaining the collective action would be procedurally unfair and impractical due to these individual variations. The plaintiffs argued that the question of

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