18th Annual Workplace Class Action Report - 2022 Edition

164 Annual Workplace Class Action Litigation Report: 2022 Edition The Court also held that common issues existed as to all class members, including: (i) whether the type of pre- shift and post-shift activities at issue were compensable; (ii) whether Plaintiffs conferred a benefit upon Defendant by performing pre-shift and post-shift activities; and (iii) whether it was unjust for Defendant to retain pay for pre-shift and post-shift activities rather than paying its correctional nurses for this time. The Court determined that regardless of the alleged factual differences among class members, Plaintiffs’ claims were typical of the class members because all stemmed from Defendant’s policy to deny pay for pre-shift and post- shift required activities. The Court also opined that Plaintiffs and Plaintiffs’ counsel met the adequacy requirement. As to the Rule 23(b) predominance requirement, Defendant argued that individual inquiries would be required as to whether or not Defendant conferred a benefit as to each class members’ pre-shift and post- shift work, and that damages would not be capable of representative proof. Id . at *17. Defendant also alleged that some nurses had their timesheets adjusted for various reasons, which allowed them to be compensated for some time performing the pre-shift and post-shift activities. The Court disagreed. It reasoned that the record clearly showed that nurses were instructed to arrive in advance of their shifts to go through security and clock-in on time, and that this time was not reflected on their timesheets. The Court found that the policy applied to all class members and thus was capable of generating common answers apt to drive the resolution of the litigation. Finally, the Court ruled that a class action would be the superior method of adjudication because without class certification, class members would have to engage in unnecessarily repetitive discovery and presentation of common evidence. Id . at *18-19. For these reasons, the Court granted Plaintiffs’ motion for class certification pursuant to Rule 23. Galigher, et al. v. Neo Cabinet , 2021 U.S. Dist. LEXIS 4474 (W.D. Ark. Jan. 11, 2021). Plaintiff, an hourly paid bookkeeper, filed a collective and class action alleging that Defendants failed to pay overtime compensation in violation of the FLSA and the Arkansas Minimum Wage Law. Plaintiff filed a motion for conditional certification of a collective action, which the Court granted. In support of her motion, Plaintiff offered her own affidavit, in which she averred that Defendants failed to pay overtime compensation to any hourly employees and that she was personally aware that other hourly employees were paid in the same manner due to her conversations with those employees. Defendants argued that Plaintiff failed to identify similarly-situated parties or specific facts demonstrating that potential opt-in Plaintiffs were not correctly paid overtime wages. Id . at *6. The Court determined that Plaintiff’s bookkeeper role required her to enter hourly employees’ time for payroll where she learned hourly workers were not appropriately paid overtime. Id. Further, the Court reasoned that Plaintiff presented sufficient evidence of a similarly-situated group of workers based on her personal knowledge. The Court noted that Plaintiff’s testimony – based on her experience entering payroll, and her discussions with other hourly employees – was that hourly employees were not paid overtime compensation for hours worked in excess of 40 per week, which was sufficient to demonstrate that Defendants had a common policy of not paying hourly employees overtime compensation. Therefore, the Court found that Plaintiff met her burden to demonstrate that she was similarly-situated with other putative collective action members. For these reasons, the Court granted Plaintiff’s motion for conditional certification of a collective action. Grove, et al. v. Meltech, Inc., 2021 U.S. Dist. LEXIS 5312 (D. Neb. Jan. 12, 2021). Plaintiffs filed a collective action alleging that Defendant failed to pay overtime compensation in violation of the FLSA. The Court previously had granted Plaintiffs’ motion for conditional certification of a collective action. Defendant filed a motion for reconsideration, and the Court denied the motion. Defendant argued that the Court’s ruling on the conditional certification motion was premature absent a ruling on their then-pending motion to dismiss, for summary judgment, and to compel arbitration. Further, Defendant argued that conditional certification of Plaintiffs subject to arbitration agreements was not proper. The Court subsequently denied all of Defendant’s pending motions. The Court opined that even if Defendants’ prematurity arguments were not moot now that the Court had issued rulings on the pending motions, it would decline to reconsider the conditional certification motion on the merits. The Court reasoned that it had considered Defendant’s argument that certification would be premature in its conditional certification order. The Court noted that it would consider the validity of any existing arbitration agreements at the decertification stage of the litigation. It held that Defendant failed to establish that the Court made any manifest error or omission that would warrant reconsideration of the conditional certification order. Further, the Court ruled that the conditional certification did not prejudice Defendant because, by its nature, it was only a preliminary ruling. Id . at *3. Accordingly, the Court denied Defendant’s motion for reconsideration.