Wage & Hour Class And Collective Action Review – 2025

whether FedEx was their joint employer constituted a common issue that justified maintaining the collective action. The plaintiffs claimed that evidence of joint employer status could be proven on a collective-wide basis, and even if not solely on this basis, there would be representative evidence showing that all opt-ins were similarly-situated in terms of being denied overtime pay. The court rejected the argument that joint employer status alone justified maintaining the collective action. The court opined that while some courts have allowed collective actions based on joint employer theories, the plaintiffs failed to demonstrate a common policy or practice by FedEx that led to FLSA violations across the board. The plaintiffs further argued that they could rely on common evidence, such as scanner data and representative testimony, to prove their claims. However, the court determined this evidence was unreliable and insufficiently representative due to disparities among the plaintiffs in terms of how they were paid and the types of vehicles they drove. For these reasons, the court decertified the collective action. In Stafford, et al. v. Bojangles’ Restaurants, Inc., 2024 U.S. App. LEXIS 31951 (4th Cir. Dec. 17, 2024), the plaintiff filed the class action alleging that the defendant required shift managers to perform unpaid work before and after their shifts, as well as travel between locations, and that the defendant manipulated employees’ time records to avoid paying overtime in violation of state wage and hour laws. The plaintiff filed a motion for class certification, and the district court initially certified the classes for North Carolina and South Carolina, relying on the fact that a significant portion of shift managers performed certain pre-shift tasks, as outlined in Bojangles’ "Opening Checklist." Id. at *6. The district court found that these tasks constituted a common issue among the class members. The defendant appealed the district court’s ruling, and the Fourth Circuit vacated the order and remanded the case back to the district court. The Fourth Circuit determined that the district court did not specifically address whether other off-the-clock work and time-shaving claims had common elements. The Fourth Circuit stated that the district court’s ruling assumed that all shift managers who worked within a three- year period had claims related to off-the-clock work, without clarifying which types of work or claims applied to the class. The Fourth Circuit ruled that the district court’s reliance on general assertions about the defendant’s policies did not provide any concrete evidence linking the alleged policies to the different types of off-the-clock work or time-shaving claims. The Fourth Circuit also found that the district court’s class definitions were overly broad, and lacked specificity about what type of off-the-clock work had been performed or whether each class member had a valid claim. Given the diversity of claims within the class, the Fourth Circuit held that the district court should have more carefully defined the class and identified which specific claims could be treated on a class-wide basis. For these reasons, the Fourth Circuit vacated the district court’s class certification order and remanded the case for further proceedings, instructing the district court to reconsider the class certification with more precise class definitions. The Fourth Circuit also suggested that the district court may consider certifying sub-classes if the claims were too varied to be handled under a single class definition. Where a plaintiff tries to raise common issues as a basis to certify a class, challenging the commonality of the proposed classes is crucial. In Jacks, et al. v. Directsat USA, LLC, 2024 U.S. App. LEXIS 25099 (7th Cir. Oct. 3, 2024), the Seventh Circuit faced for the first time the standards applicable to “issues class actions” under Rule 23(c)(4), a topic that is currently the subject of a circuit split. Although the Seventh Circuit ultimately agreed with the majority approach adopted by the Second, Third, Fourth, Sixth and Ninth Circuits – that permits certification if common questions predominate in resolving the individual issues to be certified – it also clarified that district courts should look at the relationship any certified issues have to the dispute as a whole. DirectSat (owned by UniTek USA, LLC) installs and services residential satellite dishes throughout the state of Illinois. The company employs satellite technicians to install and maintain the satellites, and it compensates them on a per-installation basis (though the technicians record their time worked to ensure they are paid the legal minimum). Id. at *2. On February 9, 2010, three plaintiffs filed a class action against DirectSat, UniTek, and certain company executives, alleging violations of the Illinois Minimum Wage Law (IMWL), the FLSA, and Illinois common law, claiming they were not paid for the time spent doing tasks such as maintaining their vehicles, mapping directions for service calls, and loading equipment prior to leaving for a job site. Id. The district court granted class certification of full- time Illinois DirectSat satellite technicians who worked at the company from July 12, 2008 through February 9, 2010. This initial class was certified pursuant to Rule 23(b)(3) for plaintiffs’ IMWL claims. Eight months after the district court certified the Rule 23(b)(3) class, the Seventh Circuit affirmed a separate district court’s decertification of a similar case captioned Espenscheid v. DirectSat USA , 705 F.3d 770 (7th Cir. 2013). Following the decision in Espenscheid , the district court vacated the previous certification order and certified a second Rule 23(c)(4) “issue class,” to resolve fifteen questions related to DirectSat’s liability that plaintiffs argued could be decided on a class-wide basis, such as the definition of the satellite technicians’ work day. Id.

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