18th Annual Workplace Class Action Report - 2022 Edition

120 Annual Workplace Class Action Litigation Report: 2022 Edition two declarations of the named Plaintiffs asserting that Defendant, as a matter of either company-wide policy or widespread practice, required employees at three Virginia facilities to perform work outside of scheduled shift times; to clock-in no sooner than seven minutes before their scheduled shift in order to round down their hours under Defendants’ time rounding policy; and did not pay their employees for all hours worked or for hours worked in excess of 40 each week at the overtime rate of one and one-half times their regular rate of pay. Id . at *6. Plaintiffs further contended that other employees were required to "perform unpaid pre-shift work," based on "personally speaking with, observing, and working alongside other employees," and that all the employees at each of the Virginia facilities were subject to the same timekeeping and shift scheduling policy, regardless of job title or rank. Id . Defendants argued that Plaintiffs’ claims were all highly individualized and that they failed to show that they were victims of a common policy or plan. Id . at *7. The Court found that Plaintiffs’ affidavits included specific facts regarding Defendant’s alleged timekeeping errors, and asserted, based on their personal knowledge, that most other employees were subject to the same pre-shift work requirements and that even if the policy was neutral, timekeeping rounding errors systemically disadvantaged all potential collective action members. Id . The Court therefore determined that Plaintiffs made the requisite showing required to establish that they were similarly-situated to the proposed collective action members. For these reasons, the Court granted Plaintiffs’ motion for conditional certification of a collective action. Sziber, et al. v. Dominion Energy, Case No. 20-CV-117 (E.D. Va. Jan. 7, 2021). Plaintiffs, a group of inspectors, filed a collective action alleging that Defendant 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. Plaintiffs sought to conditional certification of a collective action consisting of all inspectors who were paid a day rate without receiving overtime compensation over the previous three years. The Court found that all inspectors were sufficiently similar as they were all paid in the same manner and performed substantially the same work. The Court authorized notice under 29 U.S.C. § 216(b) to be sent to all inspectors and that they would have 60 days from the date of the mailing to respond and opt-in to the collective action. For these reasons, the Court granted conditional certification of the collective action. Tom, et al. v. Hospitality Ventures, LLC , 2021 U.S. Dist. LEXIS 104211 (E.D.N.C. June 3, 2021). Plaintiffs, a group of employees, filed a class and collective action alleging that Defendant operating an illegal tip pool and failed to pay overtime compensation in violation of the FLSA and the North Carolina Wage & Hour Act (“NCWHA”). Plaintiffs filed a motion for class certification of their state law claims pursuant to Rule 23, and for conditional certification of a collective action for their federal FLSA claims. The Court granted the motions. Plaintiffs asserted that: (i) Defendants improperly took a tip credit by using an invalid tip pool comprised of employees who did not customarily and regularly receive tips, and thus failed to pay Plaintiffs the required minimum wage of $7.25 per hour in violation of the FLSA; (ii) Defendants failed to pay Plaintiffs overtime wages of $10.88 per hour for all hours worked over 40 in a single workweek in violation of FLSA; and (iii) that Defendants willfully took invalid or unauthorized deductions from wages in violation of the NCWHA. In support of their motions, Plaintiffs offered their own depositions; the deposition of former Human Resources manager; the restaurant’s employee handbook; paystubs of Plaintiff and the opt-in Plaintiffs; the restaurant’s tip pool policy and tip pool summaries; photographs of the sushi bar at the restaurant; and restaurant job position descriptions. Id . at *6. As to conditional certification of the FLSA claims, the Court found that Plaintiff demonstrated that proposed opt-in Plaintiffs were similarly-situated, as they all worked for Defendants at the same restaurant, in positions which required them to participate in the restaurant’s allegedly illegal tip pool, they shared a similar time of employment, and were subject to the same tip pool policy and thus had similar core issues of fact and law material to the disposition of their FLSA claims. Id . at *14-15. The Court therefore held that conditional certification was appropriate. As to class certification of the state law claims, the Court determined that Plaintiffs met the requirements of Rule 23(a), as there sufficiently numerous class members, there was a common question regarding the legality of the tip pool that was the same for all class members, Plaintiffs’ claims were typical to all class members, and Plaintiffs would fairly and adequately protect the interests of the class. As to the Rule 23(b) requirements, the Court held that the questions of law or fact common to class members predominated over any questions affecting only individual members. The Court concluded that there was no reason to require putative class members to litigate individually their claims that may be resolved efficiently, particularly in light of the limited amount of individual damages should they prevail on their claims. Accordingly,