18th Annual Workplace Class Action Report - 2022 Edition

112 Annual Workplace Class Action Litigation Report: 2022 Edition families, and school personnel via telephone or email; preparing or revising behavior modification plans; and creating progress notes. Id . at *3. Defendant only billed some of these activities to clients, and some were non- billable. Plaintiff contended that he was informed that he would be compensated for billable time, and time spent on "occasional training and supervision." Id . In support of his motion, Plaintiff submitted his own declaration, the declaration of an opt-in Plaintiff, and timesheets reflecting hours worked. Plaintiff asserted that he regularly spent between 10 and 15 hours per week on non-billable work and worked a total of 45 and 55 hours a week including non-billable time. Plaintiff contended that he should have been paid overtime compensation for the hours worked over 40 in a workweek, and further that all BSCs and Defendant’s Mobile Therapists ("MTs") and Therapeutic Support Staff ("TSSs") were paid in the same manner and worked similar hours. The Court found that although Plaintiff had made a sufficiently factual showing that BSCs were subject to Defendant’s policy regarding paying for billable time and not non-billable time, he made no such showing as to any other employees. The Court held that Plaintiff failed to establish that he was similarly-situated to MTs and TSSs. Plaintiff argued that Defendant’s answer and discovery responses demonstrated that it paid MTs and TSSs in the same manner as BSCs. However, the Court found these concessions insufficient to establish that the positions were sufficiently similar for purposes of conditional certification. For these reasons, the Court granted Plaintiff’s motion for conditional certification, but limited the scope of the collective action to BSCs. Mardis, et al. v. Jackson Hewitt Tax Services, 2021 U.S. Dist. LEXIS 80269 (D.N.J. April 27, 2021). Plaintiffs, a group of tax preparation employees, filed a class action alleging that Defendants’ promotional program of providing customers with gift cards resulted in lower commissions for Plaintiffs in violation of their contractual rights. Plaintiffs also brought claims that Defendants were unjustly enriched and violated multiple state wage & hour laws. Plaintiffs filed a motion for class certification pursuant to Rule 23, which the Court denied. Plaintiffs sought to certify several classes, including: (i) a nationwide class of persons employed as tax preparers by Defendant TSA from the 2013-2014 tax season until the 2016-2017 tax season whose pay was lowered by the JH Defendants’ Promotion (for Plaintiffs’ breach of contract and unjust enrichment claims); (ii) a nationwide class of persons employed as tax preparers by franchisees from the 2013-2014 tax season until the 2016-2017 tax season whose pay was lowered by the JH Defendants’ Promotion (for Plaintiffs’ breach of contract and unjust enrichment claims); and (iii) 10 state subclasses of people jointly employed by JHI and franchisees in the states of New Jersey, New York, Illinois, Kentucky, North Carolina, California, Pennsylvania, South Carolina, Oklahoma, and Washington whose pay was lowered by the JH Defendants’ Promotion (for Plaintiffs’ state law wage & hour claims). Id . at *5-6. First, the Court found that Plaintiffs failed to establish numerosity, because although they submitted that the classes included thousands of individuals throughout the country, there was no factual support for their assertion. As to commonality, the Court opined that Plaintiffs’ proposed common questions were whether the Promotion lowered tax preparers’ pay and whether the tax- preparer’s contract provided that such a deduction could be made. Id . at *13. The Court found these questions were sufficiently common to all putative class members. The Court noted that for those Plaintiffs who were employed by TSA, their claims were typical of other putative TSA tax preparers class members, such that the typicality requirement was satisfied. The Court agreed with Plaintiffs that their interests and incentives aligned with the putative class members, and that they had adequate class counsel in this matter such that the adequacy requirement was also met. However, as to the Rule 23(b) requirements, the Court found that Plaintiffs failed to sufficiently demonstrated that the differences were limited to damages, and Plaintiffs did not adequately explain how the claims could be resolved on a class-wide basis. Consequently, the Court held that Plaintiffs fail to establish predominance for the TSA nationwide class. As to the unjust enrichment class, the Court also determined that Plaintiffs’ cursory argument that their unjust enrichment claim was easy to apply was insufficient to meet their burden under Rule 23. Therefore, the Court found that Plaintiffs also failed to establish that common issues predominate for their unjust enrichment claim. For these reasons, the Court denied Plaintiffs’ motion for class certification. McDonnell, et al. v. KRG Kings LLC , 2021 U.S. Dist. LEXIS 28197 (W.D. Penn. Feb. 16, 2021). Plaintiff, a restaurant server, filed a collective action alleging that Defendant failed to pay minimum wages in violation of the FLSA. Plaintiff asserted that Defendant utilized a tip credit and paid servers $3.45 per hour, but required servers to do significant amounts of non-tip generating work such that their hourly wages were below the minimum wage. The parties stipulated to conditional certification of a collective action consisting of “all individuals who, during any week since July 16, 2017, have been employed as servers at Kings Family Restaurants and were