18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 153 state law claims. The Court granted Plaintiffs’ motion for class certification. Defendants argued that Plaintiffs’ motion must be denied because a Rule 23 class action and an FLSA collective cannot exist in the same case. Id. at *12. The Court rejected Defendants’ argument. It noted that every federal circuit to address this issue had “repeatedly rejected this argument.” Id. The Court noted that discovery revealed a number of uniform practices undertaken by Defendants with respect to their pizza delivery drivers, such as: (i) requiring all drivers to provide their own cars; (ii) not tracking or reimbursing drivers’ actual expenses; (iii) issuing a flat, per-delivery reimbursement payment; and (iv) paying all drivers minimum wages. Based on these facts, the Court considered Plaintiffs’ motion in light of Rule 23(a)’s four prerequisites for class certification, i.e. , numerosity, commonality, typicality, and adequate representation. In terms of numerosity, Plaintiffs claimed that Defendants employed at least 160 delivery drivers during the relevant time period, and the Court found this putative class to be sufficiently numerous. The Court reasoned that, given the common issues of law and facts, Plaintiffs adequately demonstrated that they were allegedly harmed in the same way. As to typicality, the Court held that Plaintiff Waters’ claims were typical of all class members’ claims since they all arose from Defendants’ uniform pay practices. Finally, the Court noted Plaintiff Waters’ interests aligned with those of the class, and that Plaintiffs’ counsel was experienced in litigating wage & hour cases. Regarding Rule 23(b)’s requirements for class certification, the Court ruled that common issues of fact and law predominated over individualized issues because Defendants’ liability as to all Plaintiffs “turns on what the proper reimbursement rate is for pizza delivery drivers and whether Defendants paid that rate.” Id. at *24. Furthermore, the Court held that “the relative size of the individual claims in this case makes class resolution perhaps the only way these workers can recover their allegedly unpaid wages in an economical way.” Id. at *25. For these reasons, the Court granted Plaintiffs’ motion for class certification. Wilson, et al. v. Change Healthcare Operations, LLC, 2021 U.S. Dist. LEXIS 12243 (M.D. Tenn. Jan. 22, 2021). Plaintiffs, a group of Patient Service Representatives ("PSRs”) in Defendant’s call center, 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 sought conditional certification of a collective action consisting of all current and former PSRs and similar job titles at any of Defendant’s call center facilities over the previous three years. Plaintiffs argued that Defendant had a common policy of not paying overtime compensation, a common timekeeping system and log-on instructions, and similar job duties for all PSR employees. In support of the motion, Plaintiffs filed their own declarations and declarations of two additional opt-in Plaintiffs. Plaintiffs also provided pre-shift log-in instructions, and similar job postings for PSRs from different states. The declarations asserted that they were subject to unpaid pre-shift and post-shift work and meal breaks, which led to unpaid overtime compensation. The declarations all averred that they were aware of other PSR employees who were subject to the same common policies. Defendant argued that Plaintiffs were not sufficiently-similar to the members of the proposed collective action because Plaintiffs had not advanced a policy or common theory in violation of the FLSA. Defendant further contended that the job duties of PSRs varied significantly based on which customer they supported, and their duties were site-specific and therefore not representative of the duties of PSRs company-wide. Defendant also contended that PSR job duties varied by level and experience. The Court reasoned that the declarations were from Plaintiffs or opt-in Plaintiffs who worked in only one location, and did not indicate that they were aware of the working conditions at other facilities or on other accounts. However, the declarations averred that they saw PSRs arriving to work before their shifts at the Port St. Lucie location, and that they had conversations with those employees about the compensation policies. The Court explained that it had held previously in other situations that the "personal observations" of other employees and conversations had or overheard at work were sufficient to demonstrate personal knowledge of FLSA-violating policies and were not "mere conclusory allegations." Id . at *15. The Court ruled that Plaintiffs established adequate personal knowledge as to the relevant situations of PSRs at the Port St. Lucie facility and whether they were similarly-situated to Plaintiffs. Further, the Court reasoned that the declarations reflected, and Defendant did not dispute, that all PSRs at all locations must be done logging-in and be ready to answer phones at the beginning of their shifts and that they were not paid for time spent doing pre- shift work. Therefore, the Court found that Plaintiffs had satisfied their burden of making a requisite factual showing that Plaintiffs and the putative collective action members were similarly-situated. For these reasons, the Court granted Plaintiffs’ motion for conditional certification of a collective action.