18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 155 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. Plaintiffs asserted that Defendants failed to provide notice that they would be taking a tip credit. Plaintiffs sought conditional certification of a collective action consisting of “all tipped employees employed at Sprecher’s Restaurant & Pub locations at Watertown, Wisconsin Dells, Lake Geneva, Glendale, and Madison, Wisconsin during the time period on or after October 10, 2016; or employed at Fast Lanes Pub at Columbus, Wisconsin on or after January 22, 2017.” Id . at *15. At the outset, the Court determined that Plaintiffs produced practically no evidence related to the Fast Lanes Pub in Columbus, and so it declined to include those employees as part of the proposed collective action. In support of their motion, Plaintiffs submitted declarations that averred that they were never told that Defendant would make up the difference if their cash wage plus tips did not meet the minimum wage, that all tips received by the tipped employee must be retained by the employee, or the tip credit did not apply to any employee who has not been informed of these requirements. Id . at *16. The Court held that Plaintiffs made the requisite showing to demonstrate that they were similarly-situated to proposed collective action members in the restaurants in which they worked. Accordingly, the Court granted in part Plaintiffs’ motion for conditional certification of a collective action. Clements, et al. v. WP Operations, LLC , 2021 U.S. Dist. LEXIS 99148 (W.D. Wis. May 26, 2021). Plaintiff, a hourly production employee at a railyard, 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 Court granted. In support of his motion, Plaintiff submitted his own declaration and the declarations of two opt-in Plaintiffs. Plaintiff argued Defendant violated the FLSA by maintaining a policy and practice that failed to compensate its production employees for work performed between the time they actually clocked- in or clocked-out and the time they were scheduled for work to begin or end. Plaintiff sought conditional certification of a collective action of hourly-paid, non-exempt employees employed by Defendant within the three year period immediately preceding the filing of the complaint, who were not paid overtime compensation as a result of Defendant’s failure to compensate them for pre-shift and post-shift hours worked and/or work performed while clocked-in via Defendant’s electronic timekeeping system. The Court found that Plaintiff’s evidence was sufficient to merit conditional certification of a collective action. The Court noted that the declarations all attested that: (i) production employees punched in for the start of their shift in the seven minute window before their scheduled shift; (ii) during this period, production employees engaged in compensable work; (iii) Defendant maintained a written policy requiring production employees to punch in or punch out within a seven minute window of their shift start or end time or risk discipline; (iv) Defendant’s timekeeping system consistently rounded up to the employee’s scheduled start time; and (v) the rounding measures for both clocking-in and clocking-out used by Defendant disadvantaged the production employees. Id . at *10-11. Defendant asserted that the range of employees in the proposed collective action was too broad to certify as a collective action. The Court, however, explained that Plaintiffs did not have to be identical for purposes of conditional certification, but only similar in terms of their work. The Court determined that Plaintiff offered evidence that all production employees, regardless of their role or job title, were subject to the same allegedly illegal practice and policies. The Court therefore granted Plaintiff’s motion for conditional certification of a collective action. Downing, et al. v. SMC Corp. Of America, 2021 U.S. Dist. LEXIS 129081 (S.D. Ind. July 9, 2021). Plaintiff, an inside sales support employee, filed a collective action alleging that Defendants failed to pay overtime compensation in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court granted. Plaintiff offered her own declaration in which she averred that Defendant reclassified hourly non-exempt inside sales support employees as exempt employees for a period of time, and therefore they were not paid overtime compensation during that time period. Defendant thereafter revised the status of inside sales support employees to hourly non-exempt employees. In support of her motion, Plaintiff offered an email from Defendant’s Business System Manager to the "Inside Support Team" and "Claims Processing Group" about a reclassification of employees from "Hourly Non-Exempt" to "Salary Non-Exempt," which stated that employees were expected to work a “42 hour workweek" and that "all Overtime (anything over 42 hours in a week)" needed supervisor approval. Id . at *5. The Court found that Plaintiff sufficiently showed that all inside support team members were subject to Defendant’s alleged unlawful policy denying overtime compensation. The Court held that Plaintiff made the requisite showing necessary to demonstrate that she was similarly-