18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 159 situated to the membership of the proposed collective action. For these reasons, the Court granted Plaintiffs’ motion for conditional certification of a collective action. Parker, et al. v. IAS Logistics DFW, LLC, 2021 U.S. Dist. LEXIS 55309 (N.D. Ill. March 24, 2021). Plaintiffs, a group of warehouse employees, filed a collective action alleging that Defendant failed to properly calculate overtime premium pay and failed to pay for all meal breaks in violation of the FLSA. Plaintiffs filed a motion for conditional certification of a collective action, which the Court granted in part. Plaintiffs sought conditional certification of a collective action consisting of all hourly-paid employees, including warehouse agents, ramp agents, tug drivers, ground control workers, forklift drivers, maintenance workers, team leads, supervisors and managers, employed by Defendant at any time on or after three years from the order on conditional certification. Id . at *3. In support of their motion, Plaintiffs offered their own declarations and the declarations of 10 other workers who stated that they did not receive the proper overtime rate based on the shift differentials. The declarations also asserted that Defendant applied an automatic wage deduction for meal breaks, regardless of whether the employees took the break. Id . at *4. Additionally, Plaintiffs stated that 113 individuals had signed consent forms to join the action. Plaintiffs also submitted Defendant’s employee handbook, which provided that "overtime for non-exempt employees is paid at 1-1/2 times the straight time rate for hours worked in excess of 40 hours in a workweek, or as otherwise required by applicable law." Id . at *5-6. The Court held that the general statement in Defendant’s employee handbook that it paid overtime based on the straight-time rate, in conjunction with the declarations from Plaintiffs and opt-ins, was sufficient to establish the existence of an alleged policy in violation of the law. Id. at *6. However, the Court opined that the evidence submitted by Defendant provided that some hourly-employees in the trucking division were not eligible to receive a shift differential. Id . at *6-7. Thus, the Court declined to include those employees in the proposed collective action as they were not similarly-situated. Accordingly, the Court granted in part Plaintiffs’ motion for conditional certification of collective action. Patzfahl, et al. v. FSM ZA, LLC, 2021 U.S. Dist. LEXIS 202912 (E.D. Wis. Oct. 21, 2021). Plaintiff, a pizza delivery driver, filed a collective action alleging that Defendants 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. Plaintiff asserted that when he did not have orders to deliver, he worked inside the store on other tasks, and that Defendants paid him a minimum wage subject to a tip credit. Plaintiff asserted that he also incurred numerous job-related expenses, due to utilizing his own vehicle for deliveries, and that Defendant did not track actual expenses or reimburse him for actual expenses. Defendants reimbursed Plaintiff $1.00 to $2.00 per delivery, and between 14 to 17 cents per mile in 2019 and 28 to 33 cents per mile in 2020. Plaintiff contended that Defendants’ reimbursement rate fell below his actual expenses as well as a reasonable approximation of his actual expenses, and that his rate of pay regularly fell below minimum wage. Plaintiff sought conditional certification of a collective action consisting of all current and former delivery drivers over the past three years. After the parties conducted limited discovery for the purposes of determining whether conditional certification was appropriate, the Court found that Plaintiff made the requisite showing required to demonstrate that he was similarly-situated to the members of the proposed collective action. In response to Plaintiff’s interrogatories, Defendants acknowledged that delivery drivers were paid according to the same compensation and reimbursement policies. Id . at *12. Further, Defendants averred that when delivering orders, they earn $5.00 to $5.50 per hour plus tips, and earned a flat fee to cover delivery-related expenses. Plaintiff also offered his own declaration which stated that he and his co-workers were compensated and reimbursed according to these same policies, and that he had personal knowledge that his co-workers were subject to these policies based on his conversations with the co-workers. Defendants argued that conditional certification was inappropriate because Plaintiff failed to demonstrate any personal knowledge of the compensation and reimbursement policies beyond the store in which he worked, and had not presented declarations from employees in the other stores. Id . at *13. The Court, however, reasoned that Defendants had not detailed the compensation and reimbursement policies applicable to all stores. Defendants also asserted that they were not Plaintiff’s employer. The Court noted that Defendants’ argument went to the merits of Plaintiff’s claims and therefore was not suitable to consider at the conditional certification stage. Accordingly, the Court granted Plaintiffs’ motion for conditional certification of a collective action.