18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 167 Macmann, et al. v. Tropicana Entertainment , 2021 U.S. Dist. LEXIS 53935 (E.D. Mo. March 23, 2021) . Plaintiff, a table game dealer, filed a collective and class action alleging that Defendant, a casino operator, failed to pay minimum wages and overtime compensation, and took an illegal tip credit in violation of the FLSA and the Missouri Minimum Wage Law (“MMWL”). Plaintiff filed a motion for conditional certification of a collective action and for class certification of the state law claims under the MMWL pursuant to Rule 23. The Court granted in part and denied in part the motion. Plaintiff contended that Defendant violated the FLSA by failing to provide proper notice to tipped employees regarding the tip credit, and thus sought to certify a collective action of all employees who were paid less than the minimum wage for whom a tip credit was claimed. In support of her motion, Plaintiff provided interrogatory responses from Defendant, which stated that Defendant provided tip credit notices to tipped employees by a number of methods, including the new hire orientation program, the employee handbook, departmental-level orientation meetings, and federal and state wage posters. Id . at *7. Plaintiff also provided copies of Defendant’s new employee orientation training materials and the employee handbook, which did not include all of the necessary information to satisfy the tip credit notice requirement. However, the Court determined that the lack of any uniform policy regarding notification requirements made conditional certification of a proposed collective action of all tipped employees inappropriate. Id . The Court held that Plaintiff failed to demonstrate that she was similarly-situated to all hourly non-exempt employees in other departments since the information received at departmental orientation would not have been the same. At the same time, the Court reasoned that Plaintiff sufficiently demonstrated that she was similarly-situated to all table game dealers, and thus it granted conditional certification to a collective action limited to only hourly tipped table game dealers. In addition, Plaintiff alleged that Defendant deducted dealers’ gaming license fees from employees’ pay, which reduced their pay below the minimum wage in violation of the FLSA. Since Defendant did not challenge the existence of the alleged policy and Plaintiff presented additional evidence beyond the allegations contained in the complaint, the Court found that certification of the collective action should be granted. Plaintiff further alleged that Defendant incorrectly calculated tipped employees’ overtime rate, thereby resulting in under compensation. Plaintiff asserted that the same formula was used to calculate the overtime rate for all tipped employees. The Court held that based on the facts presented, liability would be determined solely by how the overtime rate was calculated, and not individual inquiries into each employees’ compensation. As a result, the Court opined that this made conditional certification appropriate. As to class certification of the MMWL claim, Plaintiff sought to certify a state law class on the same minimum wage claims. The Court found that the class definition limited the class to individuals who were making a direct hourly minimum wage, and therefore any deduction would reduce salaries below minimum wage and no individual inquiry would be required to determine whether Defendants were liable. The Court held that the class met all the requirements of Rule 23, and thus it granted class certification. Finally, as to Plaintiff’s proposed MMWL time clock rounding class, the Court determined that the class failed to meet the predominance requirement because the question of whether a class member was engaged in compensable work during uncompensated time would require individual inquiries. Accordingly, the Court granted in part and denied in part Plaintiff’s motion for conditional certification and for class certification pursuant to Rule 23. Mazanti, et al. v. Bordelo , 2021 U.S. Dist. LEXIS 89453 (E.D. Ark. May 11, 2021). Plaintiffs, a nurse and a janitor, filed a collective action alleging that Defendants failed to pay 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 two collective actions, including: (i) all hourly-paid nurses who worked off-the- clock or who worked more than 40 hours in any workweek; (ii) all hourly-paid janitorial and/or maintenance staff workers who worked more than 40 hours in any workweek. Plaintiffs contended that Defendants discouraged nurses from logging-in their overtime hours on the time tracking system, and did not pay the nurses for the time they worked off-the-clock. Plaintiffs further alleged that janitors were not paid overtime compensation although they regularly worked over 40 hours in a workweek Plaintiffs alleged that they and at least 60 other hourly-paid janitors, maintenance staff workers, and nurses employed by Defendants were routinely denied overtime pay. Id . at *2. In support of their motion, Plaintiffs offered four nearly identical declarations that outlined the allegations in the complaint. The Court ruled that Plaintiffs make the requisite showing for conditional certification of Plaintiffs’ proposed collective actions. Defendants argued that Plaintiffs failed to show that they were subjected to a common policy by Defendants that violated the FLSA. However, the Court reasoned that at the first stage of conditional certification, it would not be appropriate to address the merits of Plaintiffs’ case