18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 107 members. For these reasons, the Court granted Plaintiff’s motion for conditional certification of a collective action. Yong Biao Ji, et al. v. Aily Foot Relax Station, Inc ., 2021 U.S. Dist. LEXIS 23674 (S.D.N.Y. Feb. 8, 2021). Plaintiff, a masseuse, filed a collective action alleging that Defendant failed to pay minimum wages and overtime compensation in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court granted. Plaintiff asserted that Defendant would pay per customer and not provide a base rate to the workers. Plaintiff contended that he and other masseuses regularly worked between 78 and 88 hours per week and were only paid if and when they were booked with customers for massages. In support of his motion, Plaintiff submitted his own affidavit, which stated that knew of at least four others who were paid in the same manner. The Court found that Plaintiff met the requisite burden to show that masseuses were subject to a common policy in violation of the FLSA. The Court held that Plaintiff sufficiently alleged that masseuses were not paid a minimum wage and were not paid overtime hours for hours worked over 40 in a workweek. For these reasons, the Court granted Plaintiff’s motion for conditional certification of a collective action. (iii) Third Circuit Bruno, et al. v. Wells Fargo Bank N.A., 2021 U.S. Dist. LEXIS 11743 (W.D. Penn. March 15, 2021) . Plaintiffs, a group of Home Mortgage Consultants (“HMCs”), filed a collective action alleging that Defendant failed to pay for off-the-clock work and 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. In support of their motion, Plaintiffs offered several declarations in which they outlined their job responsibilities and Defendant’s timekeeping and pay policies. Plaintiffs averred that HMCs were primarily responsible for sales of home mortgage loans and assisting customers with obtaining mortgages. Plaintiffs further asserted that they were paid an hourly wage, incentives and commissions, and overtime compensation. Plaintiffs also alleged that Defendant’s time policies required them to perform work off-the-clock, and to obtain permission for overtime work performed, which was ultimately not paid to them due to Defendant’s recalculation practices. Plaintiffs claimed that they regularly worked over 40 hours per workweek due to their job requirements, and yet the manner in which the time system calculated their pay resulted in Plaintiffs not receiving overtime compensation. Defendant offered its overtime policy requiring that all overtime hours worked be recorded, and stated that its policies and procedures complied with the FLSA. The Court agreed with Plaintiffs that conditional certification was warranted. The Court found that Defendant’s arguments went to the merits of Plaintiffs’ claims, which were not appropriately considered at the conditional certification stage. The Court also determined that Plaintiffs sufficiently alleged that the illegal policies were applied nationwide based on the declarations from workers in several branches in numerous states that attested that they were subject to the same pay policies. Accordingly, the Court granted Plaintiffs’ motion for conditional certification of a collective action consisting of all HMCs nationwide. Covachuela, et al. v. Jersey Firestop, LLC , 2021 U.S. Dist. LEXIS 69189 (D.N.J. April 9, 2021). Plaintiff, a laborer and driver, 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, which the Court granted. As a laborer, Plaintiff was responsible for drywall carpentry and installation of firestop material at homes and businesses in New Jersey, Pennsylvania, New York, and Connecticut (the "Worksites"). Id . at *2. As a driver, Plaintiff’s job duties entailed "loading and unloading the company vehicle with all necessary equipment, and driving one of the company vehicles to and from the Worksites." Id . In both roles, Plaintiff was required to arrive at Defendants’ office at the start of each workday to "check in," load the vehicle with necessary equipment, and drive or ride in the vehicle to the Worksites. Id . At the end of each workday, Plaintiff was required to drive or ride in the company vehicle to the office and help unload the equipment. Plaintiff contended that he spent approximately 18.75 hours per week on these duties, and was not paid for the time. Further, Plaintiff was not paid overtime compensation for any time spent working over 40 hours in a workweek. In support of his motion for conditional certification, Plaintiff offered his own declaration in which he listed other laborers/drivers who had responsibilities similar to his. Plaintiff averred that he had conversations with the other similarly-situated employees and learned that they were subject to the same pay policies and procedures as he was subjected to in his employment with Defendants. The Court found that Plaintiff met the requisite burden required for conditional certification. The Court held that Plaintiff adequately described similarities between himself and other laborers and/or drivers and evidence that they were all subject to Defendants’ policy to deny