18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 113 paid an hourly wage below $7.25." Id . at *2. The parties stipulated that all servers were subject to the same pay policy, all were paid less than $7.25 per hour, all were classified as tipped employees, and all were classified employees covered by the FLSA. Id . After undertaking an independent analysis of the motion under 29 U.S.C. § 216(b), the Court found that Plaintiff and the proposed collective action members were sufficiently similarly- situated for purposed of conditional certification. Accordingly, the Court granted conditional certification of a collective action. Messenger, et al. v. Cabot Oil & Gas Corp. , 2021 U.S. Dist. LEXIS 114753 (M.D. Penn. June 22, 2021). Plaintiff, a laborer, filed a collective action alleging that Defendants misclassified laborers as independent contractors and thereby 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 that Defendant Carrie’s Transport & Rental, LLC employed at least 60 individuals who primarily provided services vacuuming water off well pads at Defendant Cabot Oil’s well sites, worked shifts of 12 hours and over 40 hours per week, and were paid a day rate for their work. Plaintiff alleged that he was not paid overtime premiums because he and others were misclassified as independent contractors. In support of his motion, Plaintiff offered his own declaration and the declarations of four other laborers attesting to the non-payment of overtime wages. The Court found that Plaintiff failed to provide sufficient evidence that Cabot participated in any manner in the decision to classify the laborers as independent contractors or to decline to pay them overtime. Although the declarations stated that Cabot instructed laborers what to do once they were on Cabot’s site, they did not include allegations that Cabot participated in the determinations of pay. The Court therefore concluded that Plaintiff failed to offer evidence supporting his allegations that the laborers were victims of a common policy or plan of both Cabot and Carrie’s Transport. Accordingly, the Court denied Plaintiff’s motion for conditional certification as it related to Cabot. Carrie’s Transport contended that Plaintiff and other laborers’ testimony provided evidence that they were not similarly-situated. Plaintiff argued that that he met the burden for conditional certification, that independent contractor misclassification was a common policy, and that any discrepancies in the testimony of the opt-in Plaintiffs was not appropriately considered at the conditional certification stage. The Court agreed with Plaintiff that he was not required at this stage to make a substantial showing that he was similarly-situated. The Court held that Plaintiff met his burden in presenting evidence, via declarations and deposition testimony, demonstrating that the putative collective action members were similarly- situated for purposes of conditional certification. Id . at *15. Accordingly, the Court granted Plaintiff’s motion for conditional certification as to related to Carrie’s Transport. Pendleton, et al. v. First Transit, Inc. , 2021 U.S. Dist. LEXIS 14758 (E.D. Penn. Jan. 13, 2021). Plaintiffs, a group of paratransit drivers, 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. Under Defendant’s policies and procedures, drivers were required to call a dispatcher during scheduled gaps over 90 minutes long indicating that they were available to take on additional, unscheduled rides. Id . at *3. If an unscheduled ride was available, the driver completed the ride and was compensated, however, if not needed, a driver waited off-the-clock for two to six hours without being compensated. In support of their motion, Plaintiffs offered their own declarations that stated that all drivers were subject to the same policy, were all compensated in a similar way, and were all subject to uncompensated hours every week while waiting for rides. Defendant asserted that drivers were not all similarly-situated because some worked split shifts with a midday break and some did not have regular long breaks in their schedules. However, the Court found that Defendant’s arguments went to the merits of Plaintiffs’ claims and were therefore unsuitable to address at the conditional certification stage. The Court held that Plaintiffs made the requisite showing that all drivers were subject to the same waiting time policy and were thereby similarly-situated. Accordingly, the Court granted Plaintiffs’ motion for conditional certification of a collective action. Rood, et al. v. R&R Express, 2021 U.S. Dist. LEXIS 132584 (W.D. Penn. July 16, 2021). Plaintiff, a logistics coordinator, filed a class and collective action alleging that Defendant misclassified logistics coordinators as exempt employees and thereby failed to pay them overtime compensation in violation of the FLSA and the Pennsylvania Minimum Wage Act (“PMWA”). Plaintiff previously had filed a motion for conditional certification of a collective action, which the Court granted. Plaintiff subsequently sought to certify a class action for his state law claims pursuant to Rule 23 consisting of all logistics coordinators who worked for Defendant over the