18th Annual Workplace Class Action Report - 2022 Edition

108 Annual Workplace Class Action Litigation Report: 2022 Edition pay for preparation hours and failure to pay overtime compensation. For these reasons, the Court granted Plaintiff’s motion for conditional certification of a collective action. DaNiell, et al. v. Figure 8 Communications, 2021 U.S. Dist. LEXIS 145210 (W.D. Penn. Aug. 3, 2021). Plaintiff, a telecommunications installer, 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. Plaintiff sought conditional certification of a collective action consisting of all current and former employees over the previous three years who were paid on a piece-rate basis. In support of his motion, Plaintiff submitted his own declaration in which he outlined his work experience. Plaintiff attested that Defendant had a "uniform piece-rate compensation system" that applied to all linemen and ground hands, in which they were compensated based in part on each piece-rate and the employee’s percentage of the rates applicable to various tasks, subject to each employee’s minimum hourly rate. Id . at *6. In addition, when performing non-piece-rate work, Plaintiff was paid $10 an hour and a flat rate of $150 for on-call time, plus $10 per hour for work performed during on-call time. Id . Plaintiff stated the although pay rates differed between employees, the compensation system was the same. Plaintiff asserted that he and others similarly-situated employees regularly worked over 40 hours per workweek and were not paid overtime compensation. Plaintiff also submitted copies of daily work records showing: (i) that he worked 55.5 hours during that period; (ii) he was paid $10 per hour for 24.3 hours of those hours for a total of $245; and (iii) he was paid a piece-rate of $608.35, for a total of $853.35 without any overtime premium included. The Court found that Plaintiff met his burden at the initial conditional certification stage to make a modest factual showing required for conditional certification. Accordingly, the Court granted Plaintiff’s motion pursuant to 29 U.S.C. § 216(b). Espinal, et al. v. Bob ’ s Discount Furniture, 2021 U.S. Dist. LEXIS 208306 (D.N.J. Oct. 28, 2021). Plaintiffs, a group of delivery drivers, filed a class action alleging that Defendants failed to pay overtime compensation in violation of the New Jersey Wage & Hour Law and the New Jersey Wage Payment Law. Plaintiffs previously had filed a motion for class certification pursuant to Rule 23, which the Court denied on the grounds that the class was not clearly ascertainable. Plaintiffs thereafter filed a renewed motion for class certification, which the Court again denied. Defendant Bob’s, a limited liability company, sells furniture. Bob’s contracted with Defendant XPO for freight and logistical services. Defendants argued that the information that Plaintiffs contended could be used to identify class members did not exist to the extent claimed by Plaintiffs. At the outset, the Court limited Plaintiffs’ proposed class to include only “individuals that were based out of Defendants’ Edison and Carteret, New Jersey warehouses that performed truck driving and/or helper functions for the Defendants from April 26, 2015 through to January 2017 out of the Edison Facility and from May 1, 2017 through to the present out of the Carteret Facility, who did not have direct contracts with either Defendant, and who worked more than 40 hours per week performing deliveries for Defendants.” Id . at *19. In support of their renewed motion to prove that the class was ascertainable, Plaintiffs submitted: (i) several XPO spreadsheets with the date of delivery, name of the Carrier, individuals assigned to the delivery, truck number, warehouse location, distance of delivery, number of stops, and time it took to make the delivery; (ii) a table from XPO’s spreadsheets entitled "All Teams" with a list of names alongside driver and helper names and a list of drivers and helpers with codes alongside their names; (iii) several emails sent by XPO employees listing the drivers assigned to routes in the forthcoming days as well as driver performance scores from a specified date range; (iv) XPO’s background check form that required the drivers and helpers to provide identifying information; (v) XPO’s drug and alcohol testing release form; and (vi) identification badges issued by XPO to the drivers and helpers. Id . at *9-10. The Court found that while these records could establish which drivers and helpers made deliveries for Defendants, they did not show which drivers and helpers worked overtime. The Court reasoned that given the current record, Plaintiffs had not met their burden of demonstrating that it was administratively feasible to piece together the records to identify which individuals worked over 40 hours per week for Defendants. The Court concluded that Plaintiffs provided a cursory list of records and failed to “connect the dots” for even a single class member demonstrating how the records could be used to identify which individuals worked over 40 hours per week for Defendants. Id . at *26. The Court thus ruled that Plaintiffs failed to overcome Defendants’ arguments by pointing to actual evidence in support of their position. For these reasons, the Court therefore denied Plaintiffs’ motion for class certification.