18th Annual Workplace Class Action Report - 2022 Edition

106 Annual Workplace Class Action Litigation Report: 2022 Edition statements were devoid of any detail that would enable the Court to make an informed determination that he was similarly-situated to other employees. For these reasons, the Court denied Plaintiffs’ motion for conditional certification of a collective action. Taveras, et al. v. PSD Freeport , 2021 U.S. Dist. LEXIS 72425 (E.D.N.Y. April 14, 2021). Plaintiff, a deli employee, filed a collective action alleging that Defendants failed to pay overtime compensation in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court granted in part. Plaintiff contended he and all other deli employees were victims of Defendants’ "widespread" practice of failing to pay overtime compensation for hours worked over 40 in a workweek. Id. at *2. In support of his motion, Plaintiff submitted his timesheets and those of several other employees that supported his allegations that employees were compensated at the same base rate for all hours worked, including those in excess of 40 hours in a workweek. The Court found that timesheets suggested that at least eight other employees were not paid overtime, and the documents contained no indication that these employees were managers or otherwise exempt. As a result, the Court determined that Plaintiff satisfied his burden of showing that he and his co- workers were subject to a common policy or plan in violation of the law. The Court granted conditional certification, but limited the scope of the collective action to those who were classified as non-exempt employees regardless of their title. Thompson, et al. v. Global Contract Services, 2021 U.S. Dist. LEXIS 136881 (E.D.N.Y. July 21, 2021). Plaintiff, a call center employee, filed a collective action alleging that Defendant failed to pay overtime compensation in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, and the Court denied the motion. Plaintiff offered her own declaration in support of her motion. In the declaration, Plaintiff averred that she typically worked from 6:55 a.m. to 6:00 p.m. four days a week, and was not paid for time spent attending training, meetings, and while logging-in to her computer and phone system. The Court determined that Plaintiff’s declaration failed to make the modest factual showing necessary to demonstrate she and any other employees were victims of a common policy or plan that violated the FLSA. Further, the Court opined that although Plaintiff referenced six employees in her declaration who were subject to the same alleged violations, there were no allegations that Plaintiff had any conversations with them regarding the violations or whether the alleged violated affected their overtime compensation. The Court reasoned that a sole declaration based on vague conversations that did not detail specific violations or illegal practices was rarely, if ever, going to be sufficient to justify conditional certification. Id . at *13. For these reasons, the Court denied Plaintiff’s motion for conditional certification of a collective action. Wilson, et al. v. Jamaica Service Program For Older Adults, Inc., 2021 U.S. Dist. LEXIS 196286 (E.D.N.Y. Oct. 12, 2021). Plaintiff, a bus driver, filed a collective and class action alleging that Defendant failed to pay overtime compensation in violation of the FLSA and the New York Labor Law. Plaintiffs filed a motion for conditional certification of a collective action, which the Court granted. Plaintiffs argued that Defendants had policies which led to improper time-rounding, interruption of meal breaks, and unpaid overtime. Additionally, Plaintiff asserted that he was often not paid promptly, including occasions when he was not paid wages for approximately 8 to 12 weeks. In support of his motion, Plaintiff offered his own declaration in which he relied on his conversations and observations of his co-workers. Plaintiff sought conditional certification of a collective action consisting of all hourly employees employed by Defendants over the last three years. Plaintiff contended that all hourly employees were not: (i) compensated for all work performed while clocked-in; (ii) compensated for all work performed during uncompensated and automatically deducted meal breaks; (iii) fully compensated for time worked over 40 hours per week at overtime rates; (iv) paid bi-monthly; and/or (v) denied timely wage statements. Defendants did not contest conditional certification, but argued that the collective action members should be limited to only bus drivers. Plaintiff’s declaration identified numerous hourly employees other than bus drivers by first and last name and contended that they were all subject to the same policies and procedures. The Court held that Plaintiff sufficiently established that his co-workers were similarly-situated to Plaintiff because they were all subject to Defendants’ practice or policy of delayed payment. The Court also opined that Plaintiff established that over 20 other employees, named in the declaration, were not paid during the same specified time period for the same specified length of time. The Court determined that Plaintiff’s allegations thereby made the requite showing necessary to demonstrate that he was similarly-situated to the proposed collective action