Wage & Hour Class And Collective Action Review – 2025

certification, and that preventing Rule 23 class certification will not necessarily lead to decertification of a collective action under the FLSA. The plaintiffs, a group of live-in home caregivers, filed a hybrid collective and class action alleging that the defendants, Southern Home Care Services (Southern) and Nova Home Care (Nova) failed to pay overtime compensation in violation of the FLSA and the Connecticut Minimum Wage Act (CMWA). The court previously had granted conditional certification of a collective action, and 26 caregivers opted in to the action. The defendants filed a motion for decertification, and the plaintiffs moved to certify a class pursuant to Rule 23 of the state law claims. The court denied both motions. As to the decertification motion, the court found that the plaintiffs shared similar question of law and fact such that collective action treatment was appropriate for purposes of the FLSA. The court stated that although there were some differences among the plaintiffs, such as whether a caregiver worked for Nova or Southern, the common questions outweighed any differences. The court noted that proceeding as a collective action would also promote judicial economy by resolving the claims collectively rather than conducting individual mini-trials for each plaintiff. The court, however, rejected the plaintiffs’ motion for class certification of the state law claims under Rule 23. It found that the plaintiffs failed to identify how many of the employees were in the class definition. The plaintiffs’ proposed class included “all homecare workers who worked for Nova and Southern between October 21, 2018, and the present, and who had any workweeks split between Nova and Southern on the same live-in assignment.” Id. at *23-24. The plaintiff asserted that there were 95 individuals in the class. The court, however, determined that the plaintiffs failed to provide any evidence that these employees worked for both Southern and Nova during this multi-year period and worked for Southern and Nova in the same week and for the same client (a criteria required to be part of the defined class). Id. at *25. The court concluded that absent any factual basis to determine how many of the 95 employees worked for both Southern and Nova in the same week and for the same client, it could not determine that the plaintiffs met the numerosity requirement. Accordingly, for these reasons, the court denied class certification Rule 23 but denied the motion for decertification of the FLSA collective action. The heightened standard for Rule 23 class certification, in contrast to the far more lenient standard for conditional certification under the FLSA, is demonstrated by Fayad, et al. v. City Of Philadelphia, 2024 WL 1163543 (E.D. Penn. Mar. 18, 2024), the plaintiff, a former paralegal for the City of Philadelphia District Attorney’s Office, sued her former employer, alleging that it misclassified paralegals and those with similar job duties as exempt and failed to pay them overtime wages in violation of the FLSA and the PMWA. The plaintiff moved for conditional certification under 29 U.S.C. § 216(b) of the FLSA and for class certification of the PMWA claims under Rule 23 based on deposition testimony from Unit supervisors, job descriptions, company policies, and declarations of putative plaintiffs establishing that the District Attorney’s Office uniformly classified paralegals (and others with similar job duties) as exempt. In opposing both motions, the District Attorney’s Office argued that due to the paralegals’ varying job duties, responsibilities, working conditions, hours, shifts, and units, they were not similarly-situated and individualized issues would predominate. The court granted the plaintiff’s FLSA conditional certification motion but denied her Rule 23 class certification motion. It explained that “Rule 23 class certification and FLSA collective action certification are fundamentally different creatures.” Id. at 20. The court declined to include non-paralegals with “substantially similar job duties” in the collective action membership, but found that the plaintiff met her relatively light burden to make a “modest factual showing” that the paralegals were similarly-situated because the “evidence shows the DAO has a policy of classifying paralegals as administratively exempt under the FLSA, and that it therefore fails to pay the paralegals overtime.” Id. at 20-21. The court also noted that it would reach the same result applying a heightened intermediate standard. The court opined that Rule 23, however, requires more; specifically, it requires the court to conduct a “rigorous assessment” of the available evidence and the methods by which the plaintiff proposes to use that evidence to prove the requirements of Rule 23, including the requirement that “questions of law or fact common to class members predominate over any questions affecting only individual members.” Id. at 22. The court explained that showing predominance required the plaintiff to submit “class-wide evidence to show that (a) the DAO improperly classified paralegals under the PMWA and (b) the paralegals worked overtime hours.” Id. According to the court, the plaintiff did the former but not the latter. Specifically, the plaintiff did not offer “common proof to show that the DAO’s paralegals worked over forty hours in a given week.” Id. As a result, the court concluded “individual issues will predominate” because there would be no way of knowing each paralegals hours worked without individual inquiry. Id. The court found that the plaintiff’s testimony from one Unit supervisor fell short of the “common evidence” of hours the paralegals worked required to show predominance under Rule 23 because the testimony did not apply to all 200 paralegals employed by the District Attorney’s Office. Id. The supervisor’s testimony was not common evidence to prove injury in fact to all paralegals. Id. The court also

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