18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 119 subject to the control of Defendant’s foreman; (iii) were subject to the control of Defendant because it provided the materials and equipment; (iv) regularly worked 48 to 64 hours per week; (v) were paid a flat hourly rate; (vi) were not paid overtime compensation; and (vii) were all subject to Defendant’s common policy of paying for their labor through the labor broker Defendants in an effort to circumvent the FLSA’s overtime requirements. Defendants argued that the use of labor brokers and the employer/joint employer analysis would require individualized determinations or a broker-specific analysis. Id . at *11. The Court disagreed. It reasoned that Defendant’s pay and worker control practices were the same at all job sites, and therefore Defendant had a uniform policy of paying only straight time and not paying overtime for overtime work. The Court noted that conditional certification was particularly appropriate when employers use a "straight time for overtime" policy. Id . at *12. For these reasons, the Court determined that Plaintiffs had met their burden at the conditional certification stage, and it granted Plaintiffs’ motion. Ramirez, et al. v. T&D Custom Fences & Decks, LLC, 2021 U.S. Dist. LEXIS 38161 (E.D.N.C. March 2, 2021). Plaintiff, an hourly non-exempt laborer, filed a collective action alleging that Defendants failed to pay minimum wages and overtime compensation in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court granted. Defendant did not object to conditional certification. In support of his motion, Plaintiff offered his own declaration and the declaration of another co-worker. In undertaking an independent analysis of the motion under 29 U.S.C. § 216(b), the Court found that Plaintiff was similarly-situated to the membership of the proposed collective action because they all performed substantially similar job duties, were required to work off-the-clock, were not paid overtime wages, and were subject to the same unlawful wage & hour practices. Id . at *3. The Court therefore determined that Plaintiff made the requisite showing necessary to demonstrate that he was similarly-situated to the proposed members of the collective action for purposes of conditional certification. For these reasons, the Court granted Plaintiff’s motion. Rivera, et al. v. Jet Automotive Services, 2021 U.S. Dist. LEXIS 134478 (D. Md. July 20, 2021). Plaintiffs, two automotive employees, filed a collective action alleging that Defendants failed to pay overtime compensation in violation of the FLSA. Plaintiffs filed a motion for conditional certification of a collective action, which the Court denied. The Court noted that Plaintiffs filed the motion unusually late, as Defendant had litigated the matter through nearly the entire discovery period. Accordingly, the Court ordered briefing for Plaintiffs to show: (i) whether good cause exists for Plaintiffs’ delayed filing; and (ii) how conditional certification at this stage could be granted without unduly prejudicing Defendant. Id . at *2. Plaintiffs argued that they had shown good cause because their delayed filing stemmed from logistical challenges posed by the COVID-19 pandemic. The Court rejected this contention. It opined that the circumstances cited by Plaintiffs did not constitute good cause to extend the discovery deadlines in this case. Id . at *5. Second, the Court found that Plaintiffs’ motion failed on the merits, as they did not establish that a group of similarly-situated employees existed. Although their affidavits stated that they were aware of 20 similarly-situated individuals, during their depositions Plaintiffs were able to identify only six such individuals: Further, the evidence suggested that, while other employees may have been similarly-situated to Plaintiffs in terms of the work that they did, they were not so in terms of the manner in which they were paid. For these reasons, the Court held that Plaintiffs failed to meet their burden, and thus it denied the motion for conditional certification. Stacy, et al. v. Jennmar Corp. Of Virginia, 2021 U.S. Dist. LEXIS 198258 (W.D. Va. Oct. 14, 2021). Plaintiffs, a group of former crane operators, 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. Plaintiffs specifically alleged that they were not compensated for pre-shift activities, which included essential job duties of completing paperwork, donning PPE, and setting up machinery, which took approximately 20 minutes. Despite this pre-shift work, Defendant instructed Plaintiffs not to clock-in to their shift until seven minutes prior to the beginning of their start time. Plaintiff further asserted that Defendant used a rounding practice, which rounded clock-in and clock-out times to the nearest 15-minute increment to calculate wages, with employees’ time rounded up to 15 minutes when clocking-in eight minutes or more before a shift but rounded down to zero minutes if clocking-in seven minutes or less before a shift. Id . at *3. Accordingly, when they clocked in seven minutes or less before their scheduled start time, workers were not compensated for pre- shift work. Plaintiffs sought conditional certification of a collective action consisting of all non-exempt employees in the state of Virginia who were not paid overtime compensation. In support of their motion, Plaintiffs offered