18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 105 action consisting of approximately 25 similarly-situated current and former cooks, food prep workers, dishwashers, servers and bartenders who worked for Defendant over the three year period prior to the filing of the complaint. In support of his motion, Plaintiff offered a declaration which stated that Defendant dictated his work schedule and the schedules of other employees, and that he worked over 40 hours per week without being paid overtime compensation for nearly every week of his employment. Plaintiff further declared that he would frequently discuss with the other restaurant workers the fact that they were not paid overtime and specifically named several employees with whom he had these conversations. Defendant argued that Plaintiff’s sole declaration was insufficient to establish the propriety of conditional certification. The Court disagreed. It opined that the fact that no others submitted declarations or opted-in to the collective action at this point was not fatal to conditional certification, as current employees may not have joined for any number of reasons, including that they fear retaliation or are unaware of their rights. Id . at *10. Defendant also contended that Plaintiff’s declaration was “false and misleading.” Id . The Court rejected this argument, and declined to address any factual disputes at the conditional certification stage. Finally, Defendant asserted that the kitchen workers performed different functions, on different schedules, and received different rates of pay. Id . at *11. The Court opined that the fact that different employees performed different jobs did not preclude them from being considered similarly-situated for purposes of conditional certification. The Court concluded that Plaintiff put forth sufficient evidence that several employees regardless of job title were asked to work more than eight hours a day and more than 40 hours per week without being paid overtime. For these reasons, the Court granted Plaintiff’s motion for conditional certification of a collective action. Sanchez, et al. v. Art+1, Inc. , 2021 U.S. Dist. LEXIS 43846 (S.D.N.Y. March 9, 2021). Plaintiffs, a group of construction laborers, filed a collective action alleging that Defendant failed to pay overtime compensation in violation of the FLSA. Plaintiffs filed a motion for conditional certification of a collective action, which the Court granted. Plaintiffs alleged that Defendant paid them for 40 hours or work per workweek, and paid any additional hours worked over 40 at the regular hourly rate in cash. In support of their motion, Plaintiffs offered affidavits in which they averred that they had spoken with other current and former employees who worked similar schedules, were denied overtime wages, and were paid in cash for any overtime they had worked. Plaintiffs sought conditional certification of a collective action consisting of all current and former construction laborers employed by Defendant over the previous three years. Defendant argued that the Court should not find the affidavits credible because they were all nearly identical and contained only conclusory allegations of any overtime violations. The Court rejected Defendant’s argument. It determined that this argument went to the merits of Plaintiffs’ claims, which was therefore inappropriate to consider at this stage of conditional certification. The Court held that Plaintiffs provided sufficient evidence of the existence of a common scheme affecting other potential opt-in Plaintiffs, i.e ., Defendant’s payment of overtime compensation at the regular rate in cash. The Court found that Plaintiffs’ complaint and accompanying affidavits provided the required detail to determine that they were similarly-situated to the members of the proposed collective action. For these reasons, the Court granted Plaintiffs’ motion for conditional certification of a collective action. Santos, et al. v. Nuve Miguel Corp., 2021 U.S. Dist. LEXIS 222361 (S.D.N.Y. Nov. 16, 2021). Plaintiff, a grocery store stockperson, filed a collective action alleging that Defendants failed to pay overtime wages in violation of the FLSA. Plaintiffs filed a motion for conditional certification of a collective action, which the Court denied. Plaintiffs sought conditional certification of a collective action consisting of “all current and former non- exempt employees (including but not limited to cashiers, stock persons, counter employees, and baggers) employed by Defendants" for the six-year period before filing of the complaint. Id . at *11. Plaintiff alleged that Defendants shaved time off of his hours worked by requiring him to work during his lunch and after clocking-out for the day. Plaintiff also alleged that all other non-managerial employees of Defendants were subject to the same treatment. In support of his motion, Plaintiff submitted his own declaration which stated that he regularly observed and spoke with his non-managerial co-workers regarding their wages, and identified three co-workers; a porter named "Martin," "Oscar" in Dairy, and "Victor" in Grocery. Id . at *12. The Court found that Plaintiff failed to establish that there were other proposed collective action members similarly-situated to him because he did not identify any other stockpersons. Further, the Court reasoned that Plaintiff offered only general allegations and unsupported assertions regarding his interactions with employees, which failed to provide any detail about when and where he had the conversations he claimed to have had or observations he claimed to have made, and instead relied on conclusory, generalized statement. Id . at *13. The Court concluded that Plaintiff’s