18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 123 customer calls at all hours of the day, and on each day for that week. Id . at *2. CSRs were only required to perform company tasks during after-hours if a call was received. During the on-call period, CSRs were compensated with the choice of four additional hours of straight time pay for that week or four additional hours of paid time off. Plaintiff contended that this policy violated the FLSA. In support of Plaintiff’s motion for conditional certification, she submitted her own declaration and the declarations of two opt-in Plaintiffs. The declarations all stated that Defendant employed several other CSRs and that each of them were required to work on-call weeks, and were compensated in the same manner. The Court held that Plaintiff provided sufficient evidence that other aggrieved individuals existed who were all subject to Defendant’s on-call pay policy. The declarations further demonstrated that CSRs had similar job requirements and compensation. Accordingly, the Court determined that Plaintiff also provided sufficient evidence that she was similarly-situated to the aggrieved individuals. For these reasons, the Court granted Plaintiff’s motion for conditional certification of a collective action. Eltayeb, et al. v. Deli Management, 2021 U.S. Dist. LEXIS 51864 (E.D. Tex. March 19, 2021). Plaintiff, a delivery driver, filed a collective action alleging that Defendant failed to pay overtime compensation in violation of the FLSA. Plaintiff previously had filed a motion for conditional certification of a collective action, which the Court granted. Following the Fifth Circuit’s ruling in Swales v. KLLM Transport Services, LLC, 985 F.3d 430 (5th Cir. 2021), Defendant moved for reconsideration of the conditional certification ruling. The Court granted the motion. Swales held that consideration of a motion for conditional certification required that the issue of whether workers were similarly-situated must be "rigorously” scrutinized at the start of a case, and not after a lenient, step-one “conditional certification” procedure. Id . at *8. Plaintiff argued that granting conditional certification under Swales was still appropriate because although the Swales decision modified the procedural posture of FLSA cases, it did not change “the similarly-situated standard" Id . at *9. Plaintiff further asserted that he had established that he was similarly-situated to the members of the proposed collective action. The Court rejected Plaintiff’s arguments. The Court explained that the Fifth Circuit intended to clarify the conditional certification process and therefore it must require the parties to submit "what facts and legal considerations will be material to determining whether a group of employees is similarly-situated” as required by Swales . Id. The Court concluded that only after considering the evidence presented after the limited discovery period could it "rigorously scrutinize” whether Plaintiff was similarly-situated to the proposed collective action members. Id. Accordingly, the Court granted Defendant’s motion for reconsideration of the previous ruling on Plaintiff’s motion for conditional certification of a collective action and ordered limited discovery. Fuller, et al. v. Jumpstar Enterprises, LLC, 2021 U.S. Dist. LEXIS 232709 (S.D. Tex. Dec. 6, 2021). Plaintiffs, a group of delivery drivers, 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. Defendant TForce, a same-day, last-mile transportation and logistics broker, contracted with Defendant Jumpstar Enterprises LLC, which supplied delivery drivers who performed the delivery services. Plaintiffs alleged that Jumpstar misclassified them as independent contractors, when they were in fact Jumpstar and TForce employees. Id . at *3. Delivery drivers were paid a per-package rate, with Jumpstar retaining a percentage of the rate, and drivers receiving the remaining percentage. Plaintiffs contended that they regularly worked over 40 hours in a workweek without receiving overtime compensation, and that they received no formal employment or tax records. In support of their motion for conditional certification, Plaintiffs offered the declarations of Elijah Naylor, TForce’s compliance manager, and Brian Tyson, Jumpstar’s managing director, the contractor agreement between Jumpstar and TForce, excerpts of Plaintiffs’ depositions, excerpts of the deposition of Ralph Duell, manager of the Houston TForce warehouse, and several different wage statements. Defendants argued that Plaintiffs’ evidence and allegations were insufficient to establish that they were similarly- situated to other delivery drivers. The Court agreed with Defendants. The Court found that the record showed that Plaintiffs earned different weekly amounts from one another, which suggested that they worked different hours from one another. The drivers also all had different routes and there was no evidence that the routes were of equal length or difficulty. The Court reasoned that assuming that Jumpstar was Plaintiffs’ employer, Plaintiffs were required to "produce some evidence to show the amount and extent of the FLSA violation," a burden that can be satisfied "with admittedly inexact or approximate evidence." Id . at *15. The Court opined that Plaintiffs did not produce affidavits from other drivers or elicit "representational" testimony about the work schedules in relation to the amount paid for other drivers. Id . at *16. The Court reasoned that the affidavits failed to provide sufficient information beyond allegations that drivers worked over 40 hours in a workweek, and thus were