18th Annual Workplace Class Action Report - 2022 Edition

124 Annual Workplace Class Action Litigation Report: 2022 Edition insufficient to support the inference that Plaintiffs were similarly-situated to other Jumpstar drivers. The Court explained that even though they had sufficient time to do so, Plaintiffs did not conduct Rule 30(b)(6) depositions of TForce or Jumpstar and did not produce any affidavits of potential collective action members. Id . at *18. Accordingly, the Court found that Plaintiffs failed to meet their requisite burden to establish that they were similarly-situated to the members of the proposed collective action for purposes of conditional certification. For these reasons, the Court denied Plaintiffs’ motion for conditional certification. Gill, et al. v. Concord EMS, 2021 U.S. Dist. LEXIS 166825 (S.D. Tex. Aug. 11, 2021). Plaintiffs, a group of paramedics and emergency medical technicians ("EMTs"), filed a collective action alleging that Defendants Concord and Geneva, two medical ambulance services, misclassified them and others similarly-situated as exempt employees 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 granted in part and denied in part. Plaintiffs sought conditional certification of a collective action consisting of “all EMT, Paramedics, Wheelchair Transport Drivers and/or non-exempt hourly employees who worked for Concord EMS and Geneva Transport Inc. who worked in excess of 40 hours per week and were not compensated for those hours at the applicable overtime rate, and/or is misclassified as an exempt employee from February 14, 2017 to the present.” Id . at *3-4. The Court determined that Plaintiffs, as former and current Geneva employees, failed to adduce any evidence that employees from Concord were interested in opting-in to the litigation, and there was no showing of how Concord’s EMTs and paramedics and Geneva’s wheelchair van drivers were similarly- situated. Id . at *7. As a result, the Court ruled that Plaintiffs failed to meet their burden to show that Concord employees should be part of the collective action. Further, the Court noted that Geneva and Concord employed drivers of different skill- levels, because Geneva drivers were not required to have special licensing, whereas Concord’s drivers were required to be licensed paramedics or EMTs. For these reasons, the Court granted Plaintiffs’ motion for conditional certification, but limited the scope of the collective action to those drivers employed by Geneva. Hebert, et al. v. TechnipFMC USA Inc., 2021 U.S. Dist. LEXIS 63484 (S.D. Tex. Jan. 5, 2021). Plaintiff, an installation engineer, filed a collective action alleging that Defendant misclassified engineers as exempt employees and thereby failed to pay overtime compensation in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, and the Court denied the motion. Plaintiff sought conditional certification of a collective action comprised of all installation engineers employed by Defendant during the last three years. In his declaration, Plaintiff asserted that he was paid a salary-plus-day rate, was not paid overtime compensation, and that he was aware through his conversations with other engineers that they were paid in the same manner. Defendant argued that Plaintiff and members of the proposed collective action were not similarly- situated because the engineers’ primary job duties varied, and there were five different classifications of engineers. Defendant also contended that Plaintiff was exempt from the FLSA requirements by the earned professional exemption. Plaintiff argued that the learned professional exemption did not apply because engineers were solely paid on a salaried basis. Plaintiff also asserted that Plaintiff and members of the proposed collective action were similarly-situated because Defendant’s affidavits confirmed they were all paid the same way. The Court found that the record established that Plaintiff qualified as a learned professional under the exemption. The Court further reasoned that even if Plaintiff could overcome the professional exemption issue, Plaintiff still failed to make the requisite showing necessary to demonstrate that Plaintiff was similarly-situated to the members of proposed collective action. For these reasons, the Court denied Plaintiff’s motion. Helgason, et al. v. Perry ’ s Restaurants , 2021 U.S. Dist. LEXIS 218134 (N.D. Tex. Nov. 10, 2021). Plaintiffs, a group of restaurant servers, filed a collective action alleging that Defendant failed to pay minimum wages in violation of the FLSA. Plaintiffs filed a motion for conditional certification of a collective action, which the Court denied. Plaintiffs contended that Defendant maintained a policy and practice of paying its servers less than the federal minimum wage with an illegal tip credit. Plaintiffs sought conditional certification of a collective action consisting of all servers who received a cash wage of less than $7.25 per hour. Plaintiffs asserted that Defendant paid all servers in Texas the same sub-minimum hourly wage in reliance on the FLSA’s tip credit provisions, and all servers had identical job titles, job positions, and were required to perform the same job duties. In support of their motion, Plaintiffs offered six nearly identical declarations, server paystubs, server job duties and checklists, online job postings for servers for Texas locations, and an investigation report from the U.S. Department of Labor. Id . at *6. Plaintiffs argued that Defendant did not qualify for a tip credit because