18th Annual Workplace Class Action Report - 2022 Edition

166 Annual Workplace Class Action Litigation Report: 2022 Edition employees were similarly-situated for purposes of conditional certification. For these reasons, the Court granted Plaintiffs’ motion for conditional certification of a collective action. Lipari-Williams, et al. v. Penn National Gaming, 2021 U.S. Dist. LEXIS 186096 (W.D. Mo. Sept. 24, 2021). Plaintiffs, a group of casino employees, filed a class and collective action alleging that Defendants failed to pay minimum wage and overtime compensation and operated improper tip pools in violation of the FLSA and the Missouri Minimum Wage Law (“MMWL”). The parties stipulated to both conditional certification of a collective action and class certification of the state law claims pursuant to Rule 23. The Court found that based on the record before it, the stipulation, and its independent analysis of the additional materials submitted with the motion, Plaintiffs adequately supported their motion for conditional collective and class treatment of their wage & hour claims. The Court thus conditionally certified several collective actions, including: (i) a gaming license collective action consisting of all employees paid a direct cash wage under the applicable federal minimum wage or less per hour during the relevant time period and who was subject to a wage deduction; and (ii) various tip pooling collective actions consisting of all table games dealers who participated in a tip pool. The Court also granted class certification to: (i) an MMWL gaming license class consisting of all employees paid a direct cash wage of the applicable Missouri minimum wage or less per hour and for whom a deduction was taken from their wages obtaining or thereafter renewing a state-issued gaming license; and (ii) various tip pool classes of table games dealers who participated in the table games tip pools. The Court thereby granted class certification pursuant to Rule 23 and for conditional certification of collective actions of the FLSA claims under 29 U.S.C. § 216(b). Lockett, et al. v. Pinnacle Entertainment, 2021 U.S. Dist. LEXIS 49517 (W.D. Mo. March 12, 2021) . Plaintiffs, a group of casino table dealers, filed a collective and class action alleging that Defendants required them and other similarly-situated table games dealers to participate in illegal tip pools and improperly deducted gaming license fees from their paychecks, which reduced their compensation below the required minimum wage. The parties stipulated to conditional certification of Plaintiffs’ FLSA proposed gaming license policy collective action and certifying the several classes pursuant to Rule 23, including classes under the: (i) Missouri Minimum Wage Law; (ii) Iowa Wage Payment Collective Law; and (iii) Iowa Wage Payment Law. The parties disputed whether conditional certification of Plaintiffs’ FLSA unlawful tip pool collective should be approved. After its independent analysis of the motion, the Court granted conditional certification under 29 U.S.C. § 216(b), but limited the collective action to only casino table dealers and not any dual-employees in both dealer and supervisory positions. Plaintiffs contended that Defendants failed to limit participation in the dealers’ tip pools to “employees who customarily and regularly receive tips;” (ii) Defendants were keeping and using tips to pay for a benefit accrued by an employee working in a supervisor capacity; and (iii) dual-rate employees, when working as a supervisor, are "managers" or "supervisors" and were keeping a portion of employees’ tips in violation of § 203(m)(2)(B). Plaintiffs sought conditional certification of a collective action consisting of all table games dealer included within a tip pooling arrangement at a relevant Pinnacle casino during the relevant time period. Id . at *16. The Court ruled that the evidence demonstrated that Defendants were paying supervisor paid time off, in part, from tips within the tip pools. Thus, the Court concluded that Plaintiffs produced some evidentiary support for their allegations and conditional certification was appropriate. Defendants contended that dealers were free to structure their tip pools as they wanted and therefore Plaintiffs were not similarly-situated to all other dealers. The Court noted that Defendants required dealers to participate in the tip pools as a condition of employment and that any changes to the standard tip pool’s by-laws and policies were subject to managerial approval. The Court therefore found that Defendants chose to require dealer participation in a mandatory tip pool and chose to rely on distribution of tips from that tip pool to make up the difference between their dealers’ subminimum base hourly wage and the federal minimum wage. Id . at *19. The Court further explained that Plaintiffs sufficiently demonstrated that Defendants had a common policy that allegedly resulted in the use of dealers’ pooled tips to pay for dual-rate employees’ PTO hours earned while working in a supervisor capacity. The Court opined that the proposed collective action was narrowly defined to include only persons working dealers from the table games departments, all of who were subject to a common policy and pay practice impacting them in the same or substantially similar manner. Accordingly, the Court granted Plaintiffs’ motion for conditional certification.