18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 117 workweek and were not compensated for overtime. Defendants argued that Plaintiffs were not similarly-situated as they were not representative of the putative collective actions. The Court found that Plaintiffs were similarly- situated such that conditional certification was warranted. The Court noted that Plaintiffs’ declarations outlined the similar tasks performed in each of Defendants’ clubs and the similar manner Defendants compensated them for work. The Court opined that the similarities would lead to similar legal and factual issues regarding the interpretation of their employment contracts. Accordingly, the Court granted Plaintiffs’ motion for conditional certification of a collective action. Giron, et al. v. Square Construction Inc., 2021 U.S. Dist. LEXIS 113290 (W.D.N.C. June 17, 2021). Plaintiff, a truck driver, filed a collective action alleging that Defendant misclassified its drivers as independent contractors and thereby failed to pay them overtime compensation in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court denied. Plaintiff asserted that he generally worked between 65 and 80 hours per week and was not paid overtime compensation for hours worked over 40 in a workweek. Plaintiff further alleged that he interacted with 15 to 40 other hourly independent contractors working as drivers, mechanics, warehouse workers, repairmen, bricklayers, framers, and concrete masons, all of whom informed Plaintiff that they were classified as independent contractors and denied overtime pay. Plaintiff sought conditional certification of a collective action consisting of all hourly independent contractors employed by Defendant. The Court found that Plaintiff’s vague allegations with little factual support failed to establish that he was similarly-situated to the members of the proposed collective action. The Court opined that a collective action was only appropriate when a Plaintiff provides at least minimal evidence that the membership of the proposed collective action also has similar job duties. The Court ruled that Plaintiff failed to meet his burden, and therefore it denied the motion for conditional certification of a collective action. Hathaway, et al. v. Smallcakes Steele Creek, LLC , 2021 U.S. Dist. LEXIS 168592 (W.D.N.C. Sept. 7, 2021). Plaintiff, a cashier, filed a collective action alleging that Defendant improperly retained tips in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court granted. In support of her motion, Plaintiff offered her own declaration, which specifically asserted that Defendant’s customers were able to leave cash tips in a tip jar located at the cash register, or could leave a tip on a credit card transaction at the register. Plaintiff contended that tipped employees only received the tip money from the tip jar, and that Defendant improperly retained all tips made on credit card transactions. Plaintiff further alleged that when she asked Defendant’s management about the credit card tips, she was paid a discretionary bonus in cash, however, was not provided with any of the credit card tips. Plaintiff asserted that management told her to stop “pushing the issue of tip withholding.” Id . at *3. Plaintiff also contended that all tipped employees were subject to Defendant’s common policy of denying payment of credit card tips. Defendant did not oppose conditional certification. In making an independent analysis of the propriety of the motion, the Court found that Plaintiff made the requisite factual showing required for conditional certification. Accordingly, the Court granted Plaintiff’s motion for conditional certification of a collective action. James, et al. v. RPS Holdings, 2021 U.S. Dist. LEXIS 237536 (M.D.N.C. Dec. 13, 2021). Plaintiff, an exotic dancer at an adult night club, filed a collective action alleging that Defendant misclassified dancers as independent contractors and thereby failed to pay them minimum wages and overtime compensation in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, and the Court granted the motion. In support of her motion, Plaintiff offered her own declaration in which she outlined that Defendant: (i) set and determined the method of pay, schedules, work attire, and minimum hours worked per shift for all exotic dancers; (ii) had "the ability to discipline, fine, and fire all other exotic dancers and would supervise their work;” (iii) collected "fees and penalties” from dancers; and (iv) dancers were required to participate in Defendant’s tip pool. Id . at *10-11. Plaintiff further averred that she and other dancers were not informed of any tip credit, were not provided with any information regarding wages, and were not paid any wages. Defendant contended that Plaintiff’s claims were subject to arbitration pursuant to the agreement she signed to be an independent contractor. The Court found that the arbitration agreement did not reflect contractual obligations between Plaintiff and Defendant because the signatory to the agreement was “Cap Cab” not Defendant, and Defendant failed to point to anything in the record establishing a connection between it and "Cap Cab.” Id . at *26. The Court therefore rejected Defendant’s argument. In analyzing Plaintiff’s motion for conditional certification under 29 U.S.C. § 216(b), the Court reasoned that Plaintiff sufficiently demonstrated that she was similarly-situated to