18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 115 conditional certification of a collective action for the FLSA claims under 29 U.S.C. § 216(b). The Court granted the motion. As to Rule 23 certification, Plaintiff sought to certify a class consisting of “all tipped employees who worked for Defendant in the Commonwealth of Pennsylvania between January 22, 2016 and August 1, 2019, and were hired prior to January 1, 2019.” Id . at *20. Defendant argued that Plaintiff failed to meet her burden on the Rule 23(a) requirements of typicality and adequacy and the Rule 23(b)(3) requirements of predominance and superiority. The Court found the class was sufficiently numerous at over 1,000 members. In addressing typicality, the Court ruled that Plaintiff’s claims were typical to those of other putative class members because they were based on the same legal theory, i.e. , Defendant failing to provide a compliant tip credit notice, and arose from the same practice or course of conduct, i.e. , Defendant’s allegedly deficient company-wide policies and procedures. Id . at *26-27. Defendant did not contest that Plaintiff met the adequacy requirement, and the Court agreed that she did. In analyzing commonality and predominance together, the Court reasoned that no individualized inquiry into the precise notice received by any individual class member would be needed unless there was evidence that a particular manager deviated from company-wide onboarding materials. The Court noted that there was no evidence in the record to suggest that occurred, and therefore, there were no individualized questions because all prospective class members were subject to Defendant’s common policy. Id . at *41. The Court concluded that a class action would be the superior method of adjudication because of the small recoveries possible for class members and the predominating questions of fact and law. Accordingly, the Court granted Plaintiff’s motion for class certification. Relative to the FLSA claims, the Court reasoned that Plaintiff made the requisite showing necessary to establish that she was similarly-situated to the proposed collective action members. Plaintiff asserted that Defendant had a company-wide onboarding materials, and all new hires received the same information during training, including the tip credit notice. The Court therefore also granted Plaintiff’s motion for conditional certification of a collective action. Wofford, et al. v. Seba Abode, Inc., 2021 U.S. Dist. LEXIS 136464 (W.D. Penn. July 22, 2021). Plaintiff, a home healthcare companion, 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. Plaintiff asserted that Defendants’ pay practices amount to a "‘pay deduction scheme in which a lower ‘regular rate’ is paid when an employee works overtime, and the new lower rate is justified by no factor other than the fact that the employee worked overtime," and further asserted that such a policy was not permissible under the FLSA. Id . at *13. Plaintiffs contended that Defendants had a written policy that stated that employees who worked over 40 hours per workweek were subjected to a pay decrease, and therefore were not paid appropriately for either straight time or overtime hours worked. Defendants argued that Plaintiff failed to identify other similarly-situated employees who were paid a reduced hourly rate as a result of working over 40 hours per workweek. In support of her claim, Plaintiff offered her own declaration, as well as Defendants’ Orientation Program Guidelines, Employee Handbook, an email from Defendants’ Vice President of Operations to Plaintiff outlining her pay decrease since she was working overtime hours, and copies of Plaintiff’s earnings statements for the relevant pay periods. Plaintiff also provided declarations and pay statements from two other opt-in Plaintiffs that were substantially similar to her own. The Court determined that the evidence Plaintiff submitted was sufficient to demonstrate a common policy and that Defendants implemented the reduction of the pay rate of employees who worked overtime. Id . at *16-17. Further, the additional declarations and wage statements of opt-in Plaintiffs suggested that others were subject to the same policy. For these reasons, the Court granted Plaintiff’s motion for conditional certification of a collective action. (iv) Fourth Circuit Alfaro, et al. v. Gali Service Industries, 2021 U.S. Dist. LEXIS 194971 (D. Md. Oct. 8, 2021). Plaintiffs, a group of janitorial employees, filed a collective action alleging that Defendant failed to pay all wages during the week it ceased operations in violation of the FLSA. Plaintiffs also claimed that they were owed additional payments for overtime, prior work, and benefits. The Court previously had granted conditional certification of a collective action against Defendants and 330 employees opted-in to the action. Plaintiffs thereafter settled their claims with all but the Gali Defendants. Plaintiffs requested that the Court certify the claims of the 330 individuals that already opted-in as an FLSA collective action against the Gali Defendants. Defendants did not submit a response to the motion. The Court determined that since it previously had granted conditional certification and all of the employees entitled to notice already received it, there would be no need to resend notice to these employees. Id . at *5. The Court held that all opt-in Plaintiffs certified in the collective action were