18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 165 Harris, et al. v. Ratner Steel Supply Co ., 2021 U.S. Dist. LEXIS 24118 (E.D. Ark. Feb. 9, 2021). Plaintiff, an overhead crane operator, filed a collective action alleging that Defendant failed to include bonuses in overtime pay calculations in violation of the FLSA. Plaintiff asserted that operators would receive safety bonuses for each quarter worked without an accident on site, and that Defendant did not add these bonuses into the regular rate of pay for purposes of calculating overtime compensation for hours worked over 40 in a workweek. Although Defendant generally denied Plaintiff’s allegations, the parties stipulated to conditional certification of a collective action consisting of “all hourly employees of Ratner Steel Supply Co. who received a quarterly safety bonus any time after April 8, 2017.” Id . at *2-3. Plaintiff offered his own affidavit in support of the motion in which he stated that he and other hourly employees were all subject to the same pay structure and all received bonuses which were not adding into the regular rate of pay for overtime calculations. The Court found that based on the limited record before it, the allegations in the complaint, and the stipulations of the parties’ in their joint motion, the members of the proposed collective action were alleged victims of a purported common policy in violation of the FLSA. Id . at *5. Accordingly, the Court held that conditional certification was appropriate, and granted the motion. Hopkins, et al. v. Calais Forest Equity Enterprises, LLC, 2021 U.S. Dist. LEXIS 204693 (E.D. Ark. Oct. 25, 2021). Plaintiff, a leasing consultant, filed a collective action alleging that Defendant, an apartment complex property management company, failed to pay overtime compensation in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court denied. Plaintiff alleged that Defendant failed to properly include commission payments in the regular rate of pay for purposes of calculating the overtime pay rate. In support of her motion, Plaintiff offered her own declaration in which she averred that she believed the same thing happened to other leasing consultants employed by the Defendant at the apartment complex locations where she worked, and at all other apartment complex locations owned by the Defendant nationwide. Plaintiff also asserted that Defendant had a common policy of failing to include commissions earned during the relevant pay period when determining the normal wage for purposes of the overtime calculation. Id . at *3. Plaintiff sought conditional certification of a collective action consisting of "all leasing consultants and assistant property managers who have been employed by Defendants at any time since January 8, 2018." Id . at *4. The Court found that Plaintiff’s declaration did not provide sufficient evidentiary support to establish that she was similarly-situated to other leasing consultants. The Court reasoned that Plaintiff failed to name a single employee besides herself who she knew had worked overtime in a week for which that employee earned commissions. The Court opined that even assuming that other leasing consultants worked over 40 hours in a workweek, earned commissions that same workweek, and were not paid the correct overtime rate, Plaintiff still failed to put forth any evidence that there was even one other employee who was paid less than what he or she deserved by law. The Court explained that only pointing to an asserted common policy was insufficient to obtain conditional certification where there was no evidence to show that the policy caused an actual FLSA violation with respect to multiple employees. Id . at *5-6. The Court ruled that Plaintiff’s vague, general, and conclusory assertions failed to make the requisite showing necessary to establish that others were similarly-situated for purposes of conditional certification. For these reasons, the Court denied Plaintiff’s motion for conditional certification of a collective action. Huey, et al. v. Trinity Property Management LLC, Case No. 20-CV-685 (E.D. Ark. June 14, 2021). Plaintiffs, a group of maintenance workers, filed a collective action alleging that Defendant failed to properly calculate and 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. Plaintiffs sought conditional certification of a collective action consisting of all maintenance personnel employed in the three years preceding the filing of the complaint. Id . at 2. In support of the motion, Plaintiffs offered their own declarations in which they stated that Defendant paid them for fewer hours then they actually worked, that they were not compensated for on-call work, that their lunch period hours were deducted from pay even when they worked during lunch, and that they were not reimbursed for vehicle expenses when they used their personal vehicles for job-related tasks. Plaintiffs further averred that Defendant occasionally subtracted hours from the timesheets prior to paying them such that they did not receive payment for all hours worked. Defendant argued that Plaintiffs’ declarations were devoid of actual facts, only made general statements and bare conclusions, and that they failed to provide any evidence to support their declarations. The Court rejected Defendant’s arguments. It found that the pleadings and declarations, taken together, were sufficient to make the requisite showing that they and other maintenance