18th Annual Workplace Class Action Report - 2022 Edition

122 Annual Workplace Class Action Litigation Report: 2022 Edition conditional certification of a collective action composed of “all hourly-paid Home Healthcare Workers employed by the Defendants who worked over 40 hours in any week after November 10, 2017." Id . at *3. The Court determined that Plaintiff failed to provide any evidence demonstrating that she was similarly-situated to the members of the proposed collective action because she did not identify any potential opt-in Plaintiffs, or submit any affidavits or other evidence from potential Plaintiffs. The Court opined that Plaintiff also failed to provide sufficient evidence surrounding the amounts of pay at issue, the process concerning why or how the bonuses were paid, the frequency of bonuses being offered to other home healthcare workers, or any other evidence as to shift bonuses. Id . at *5. Accordingly, the Court ruled that Plaintiff failed to make the requisite showing necessary to establish that she was similarly-situated to the proposed collective action members. For these reasons, the Court denied Plaintiff’s motion for conditional certification of a collective action. Clark, et al. v. Contract Land, 2021 U.S. Dist. LEXIS 170254 (S.D. Tex. Aug. 2, 2021). Plaintiff, a right-of-way agent, 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 Magistrate Judge recommended be denied. Plaintiffs sought conditional certification of a collective action consisting of "all Right of Way Agents who worked for, or on behalf of, CLS who were paid a day rate with no overtime in the past three years." Id . at *2. Plaintiff asserted that while employed with Defendant he was paid "a flat daily rate for each day worked regardless of the total hours worked in a workweek." Id . In support of his motion, Plaintiff offered his own declaration and the declaration of another agent. The declarations asserted that they performed similar job duties, and were aware that other agents were paid in the same manner. The Magistrate Judge found that Plaintiff’s evidence only presumed that there was a cohesive group of workers subject to the same pay policies. The Magistrate Judge noted that although Plaintiff alleged that he made a day-rate and was not paid overtime compensation, Defendant refuted the allegation with evidence that Plaintiff was paid a salary, not a day rate. The Magistrate Judge ruled that Plaintiff’s submissions and evidence did not show that it determine whether all proposed members of the collective action were, or were not, paid on a salary basis within the meaning of § § 541.602 and 541.604 of the FLSA regulations. Id . at *11. Defendant further asserted that Plaintiff was subject to the administrative exemption of the FLSA, and the Magistrate Judge opined that that it would require an individualized inquiry and assessment to determine whether the administrative exemption applied to the other workers within the group for which Plaintiff sought to conditional certification. For these reasons, the Magistrate Judge recommended that Plaintiff’s motion for conditional certification be denied. Collins, et al. v. Pel-State, 2021 U.S. Dist. LEXIS 220336 (W.D. Tex. Sept. 29, 2021). Plaintiff, an fuel technician driver, filed a collective action alleging that Defendant failed to pay all wages due in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court granted. Plaintiff sought conditional certification of a collective action consisting of “all hourly Driver/Operators and Fuel Technicians employed since March 27, 2017. Id . at 5. Plaintiffs alleged that only drivers of company vehicles were paid for travel time spend going to and from Defendants’ worksites. In support of their motion, Plaintiffs offered declarations in which they all share the same job titles, performed the same job duties, and were subject to the same expectations. Id . at *9. Additionally, Plaintiffs and the potential opt-in Plaintiffs were paid an hourly rate for their work and were each subject to Defendants’ written policy that spelled out that only the driver of the crew was paid for travel to or from the worksite, and not the other passengers. Id . Plaintiffs asserted that Defendants’ policy violated the FLSA since Plaintiffs and other employees continuously made sure that tools were safely secured in the vehicle and performed pre-trip inspections during weeks in which they worked more than 40 hours per week. Id . at *9-10. The Court determined that Plaintiff’s evidence was sufficient to make the requisite showing necessary to establish that Plaintiff was similarly-situated to the membership of the proposed collective action. For these reasons, the Court granted Plaintiffs’ motion for conditional certification of a collective action. Edwards, et al. v. Univar USA, Inc ., 2021 U.S. Dist. LEXIS 5403 (N.D. Tex. Jan. 12, 2021) . Plaintiff, a customer service representative (“CSR”), filed a collective action alleging that Defendant required CSRs to work on-call without being paid for overtime compensation in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court granted. Plaintiff contended that CSR’s regular work schedules consisted of a 40-hour workweek, but once a month they were also required to work an "on-call" schedule. Id . at *1-2. Plaintiff asserted that the on-call schedule required the CSR to be available to answer