18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 157 contended that they were misclassified as exempt because in addition to their PSM duties, they "performed significant hours of non-exempt manual labor and other non-exempt duties typically performed by hourly store associate employees, such as operating the cash registers, bagging groceries, stocking shelves, cutting and arranging flowers, slicing deli products and delivering catering orders to residences and businesses." Id . at *5. Defendant contended that the evidence in depositions demonstrated that each PSM performed additional duties to a highly varying degree, with some performing little to no manual labor and some performing it daily. The Court agreed with Defendant that the evidence suggested that there was no uniform, common policy governing the extent to which PSMs performed front-end functions. Plaintiffs also argued that the PSM duties themselves were not administrative in function because they did not involve the exercise of sufficient discretion or independent judgment. Id. at *6. Defendant also argued that the deposition testimony established that there was a wide variety of the amount of independent judgement utilized by PSMs in different stores. The Court agreed that Plaintiffs’ disparate factual and employment settings weighed in favor of decertification. In addition, the Court found that PSMs varied significantly in the time spent performing different functions of their jobs. Accordingly, the Court concluded that the question of discretion and independent judgment would not be easily judged on a collective-wide basis. Finally, the Court opined that due to the highly individualized factual issues that would predominate, the interests of judicial economy would not be served by allowing the claims to proceed as a collective action. Id . at *12. For these reasons, the Court granted Defendant’s motion to decertify the collective action. Horta, et al. v. Indy Transportation , 2021 U.S. Dist. LEXIS 81289 (N.D. Ind. April 28, 2021). Plaintiff, a dump truck driver, filed a collective action alleging that Defendant failed to pay all wages due and overtime compensation in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court granted. Plaintiff contended that Defendant required drivers to inspect dump trucks before the beginning of their scheduled shifts and to inspect and clean trucks after the end of their scheduled shifts without compensation. Plaintiff further alleged that Defendant paid for a category of work called "Non-Prod Time," but only paid "a very small amount of money without stating the number of hours worked in the category of ‘Non- Prod Time’" and did not include them in the determination of the number of hours drivers work in a week. Id . at *3. Defendant did not opposed conditional certification. In its independent analysis of the propriety of the motion, the Court determined that Plaintiff satisfied the requisite factual showing that he was similarly-situated to potential opt-in Plaintiffs, as he alleged that he performed substantially similar duties as all other dump truck drivers, that they were all subject to the same policies and procedures, and they were all paid in the same manner by Defendant. For these reasons, the Court granted Plaintiff’s motion for conditional certification of a collective action. IBEW Local 494, et al. v. Coates Electric LLC, 2021 U.S. Dist. LEXIS 53181 (E.D. Wis. March 22, 2021). Plaintiffs filed a collective action alleging that Defendants failed to pay minimum wage and overtime compensation to workers 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 employees who did not receive the legally required minimum wages and overtime compensation during the time period on or after October of 2018. In support of their motion, Plaintiffs filed 21 declarations stating that Defendants gave them checks that bounced or failed to pay them for work altogether. The declarations varied in detail, but all averred that Defendants failed to pay all wages due. Defendants did not file a reply to the motion for motion for conditional certification. In undertaking an independent assessment of the motion pursuant to 29 U.S.C. § 216(b), the Court held that Plaintiffs made the requisite showing to demonstrate that they were similarly-situated for purposes conditional certification. Accordingly, the Court granted Plaintiffs’ motion for conditional certification of a collective action. Johnson, et al. v. Cellco Partnership, 2021 U.S. Dist. LEXIS 126273 (N.D. Ill. July 7, 2021). Plaintiff, a cell center employee, filed a collective action alleging that Defendant failed to pay for time spent working prior to logging-in to their phone systems in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court granted. Plaintiff contended that all administrative tasks had to be handled either in the morning before her shift, in the afternoon after her shift, or over her lunch break, and that she was not compensated for any of this work time. In support of her motion, Plaintiff offered her own declaration in which she averred that she personally observed dozens of other call center employees who worked subject to