18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 161 Magistrate Judge’s report and recommendation and agreed with the assessments contained in the order. Accordingly, the Court adopted the Magistrate Judge’s conclusions and thereby granted Plaintiffs’ motion for conditional certification of a collective action. Rodriquez, et al. v. Dignity Health, 2021 U.S. Dist. LEXIS 4748 (N.D. Ill. Jan. 11, 2021). Plaintiffs, two housekeepers, filed a collective action alleging that Defendants failed to for time spent traveling to client locations and failed to pay for all hours worked in violation of the FLSA. Plaintiffs filed a motion for conditional certification of a collective action, which the Court granted. In support of their motion, Plaintiffs submitted their own declarations in which they asserted that Defendant did not formally compensate them for travel time, they were only allowed to leave 15 minutes early from one job to travel to their next worksite, and only then if they finished their cleaning work at the first site early. If they did not finish early, their travel time to the next location was unpaid. Plaintiffs further asserted that they were regularly required to drive other housekeepers to and from locations and had to pick up supplies from Defendant’s office without being paid for the time spent doing those task. Additionally, Plaintiffs attested that Defendant’s electronic timekeeping schedule often allotted less time for cleaning worksites than was actually needed. Plaintiffs also contended that they were rarely compensated for time spent working beyond a worksite’s allotted time. Plaintiffs also averred in their declarations that they had trained multiple housekeepers who were also similarly undercompensated. The Court found that Plaintiffs made the requisite showing necessary to demonstrate that they were similarly-situated to the membership of the proposed collective action. For these reasons, the Court granted Plaintiffs’ motion for conditional certification of a collective action. Szarka, et al. v. BDH Custard, Inc., 2021 U.S. Dist. LEXIS 150892 (N.D. Ill. Aug. 11, 2021). Plaintiff, an assistant manager at a Culver’s restaurant, filed a collective action alleging that Defendant failed to include bonuses in the regular rate of pay for purposes of calculating overtime compensation in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court granted. As an assistant manager, Plaintiff was paid by the hour and received $200 quarterly bonuses based on store performance. Any overtime pay did not take the quarterly bonuses into account. In support of her motion, Plaintiff offered her own declaration, in which she averred that she spoke with other assistant managers and hourly employees who received bonuses and the bonuses were not included in their overtime pay calculation. Defendant argued that Plaintiff failed to establish that there were others similarly-situated to her. The Court disagreed. It found that Plaintiff’s declaration was sufficient to demonstrate that she and others were victims of a common overtime pay policy that violated the law. Id . at *4. The Court reasoned that at this first stage of conditional certification, Plaintiff was not required to rebut any potential differences between the members of the proposed collective action. For these reasons, the Court granted Plaintiff’s motion for conditional certification of a collective action. Valesh, et al. v. Bajco International , 2021 U.S. Dist. LEXIS 38083 (N.D. Ind. March 2, 2021). Plaintiff, a pizza delivery driver, filed a collective action alleging that Defendant failed to pay drivers minimum wages 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 delivery drivers within the three years of filing of the complaint. Plaintiff submitted a declaration that averred that delivery drivers: (i) were paid minimum wages or minimum wages minus a tip credit while on the road making deliveries, (ii) provided their own cars for work, and (iii) were reimbursed for their automobile expenses at a per-delivery amount that resulted in reimbursement payments below the IRS standard mileage rate, thereby resulting in an FLSA violation. Id . at *4. The Court held that Plaintiff met the requisite burden required for conditional certification. The Court opined that Plaintiff made a sufficient showing that other delivery drivers existed who were also subject to similar terms of employment and compensation. The Court noted that Plaintiff averred that he observed other drivers being subject to the same terms, spoke to drivers about the terms of their employment, and spoke to managers about the terms of employment for delivery drivers. Id . at *5. Accordingly, the Court found that Plaintiff was sufficiently similarly-situated to the collective action of drivers that he sought to represent. For these reasons, the Court granted Plaintiff’s motion for conditional certification of a collective action.