18th Annual Workplace Class Action Report - 2022 Edition

154 Annual Workplace Class Action Litigation Report: 2022 Edition York, et al. v. Velox Express, 2021 U.S. Dist. LEXIS 44909 (W.D. Ky. March 10, 2021). Plaintiffs, a group of delivery drivers, filed a collective action alleging that Defendant misclassified couriers as independent contractors and thereby failed to pay minimum wages and overtime compensation in violation of the FLSA. Plaintiffs filed a motion for conditional certification of a collective action, which the Court granted in part. In support of their motion, Plaintiffs offered the declaration of one named Plaintiff, which stated that Defendant maintained a policy under which it paid drivers a fixed rate for routes, that she occasionally worked over 40 hours per week without being paid overtime compensation, and that she knew other drivers who were paid in the same way. Defendant argued that Plaintiffs failed to demonstrate that Plaintiffs were similarly-situated to potential opt-in Plaintiffs because: (i) they offered only a single declaration consisting largely of hearsay and conclusory allegations; and (ii) many of the drivers had binding arbitration agreements. The Court found that the declaration was sufficient to establish that there were others similarly-situated. Further, Plaintiffs argued that the enforceability of an arbitration agreement was a merits-based question such that consideration of the agreements at the conditional certification stage would be inappropriate. The Court noted that the Sixth Circuit had not expressly determined whether the existence of an arbitration agreement should be a consideration for the conditional certification phase or for a decertification phase after the benefit of fulsome discovery. The Court was persuaded by the Fifth and Seventh Circuits’ rationales for considering arbitration agreements at the conditional certification stage, and therefore followed that approach. The Court thus explained that if a Plaintiff contested Defendant’s assertions about the existence of valid arbitration agreements entered by proposed notice recipients, it should permit the parties to submit additional evidence on the agreements’ existence and validity. Id . at *13. However, since Plaintiffs here did not challenge Defendant’s assertions about the existence of mutual arbitration agreements; the Court declined to authorize notice be sent to those with arbitration agreements. Accordingly, the Court held that those with arbitration agreements would not be members of the collective action. In addition, Plaintiffs asserted that drivers from all locations should be included within the scope of the collective action. However, the Court reasoned that since Plaintiffs’ evidence was limited to the Little Rock, Arkansas region, conditional certification of a collective action would be appropriate for members in that region only. Accordingly, the Court granted in part and denied in part Plaintiffs’ motion for conditional certification of a collective action. Young, et al. v. I Love This Bar LLC , 2021 U.S. Dist. LEXIS 73915 (S.D. Ohio April 16, 2021). Plaintiff, a tip- eligible bartender, filed a collective action alleging that Defendants failed to pay minimum wages and overtime compensation and failed to inform tipped employees that they were subject to a tip credit 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 current and former hourly tipped employees of Defendants during the three years prior to filing the motion through the conclusion of the action. Id . at *3-4. In support of the motion, Plaintiff offered her own declaration and the declaration of another opt-in Plaintiff. The declarants both averred that they were employed by Defendants as hourly, non-exempt, tipped bartenders; they were not paid for overtime hours worked; they were not notified that Defendant would take a tip credit; they were subject to managers’ improperly retaining tips from the tip pool; and they were not paid minimum wage. Id . at *4. Defendants argued that Plaintiff could now show that she was similarly-situated to the members of the proposed collective action because she only worked at the Park Street location and not for any of the other Defendants. However, the Court reasoned that at the first step of conditional certification, Plaintiff need only show that she and the putative collective action members were subject to Defendants’ alleged policies in violation of the FLSA. The Court opined that Plaintiff and the putative collective action members were unified by a common theory that Defendants violated the FLSA by failing to pay hourly, non-exempt, tipped employees proper wages through Defendants’ tipping policies and procedures. Id . at *11. Defendants further contended that Plaintiff was dissimilar to members of the putative collective action because Park Street fired her for theft. The Court found Defendants’ argument unpersuasive, as the present action solely addressed payment of wages by Defendants, and did not have anything to do with the employment relationship terminated between Park Street and Plaintiff. For these reasons, the Court determined that Plaintiff satisfied her burden for conditional certification, and therefore it granted the motion. (vii) Seventh Circuit Bruske, et al. v. Capitol Watertown Sprechers, 2021 U.S. Dist. LEXIS 159562 (W.D. Wis. Aug. 24, 2021). Plaintiffs, a group of tipped restaurant employees, filed a collective action alleging that Defendants failed to pay