18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 169 consultation with their branch managers, and the composition of the compensation depended on their department code, role, and title, which resulted in some Plaintiffs receiving incentive bonuses while others did not. Id . at *22. The Court determined that Plaintiffs had not presented evidence of a specific company policy that applied to all collective action members, and Plaintiffs did not work at a single location or have the same roles, and were thus not similarly-situated. The Court ruled that even assuming Defendant did pay Plaintiffs less than comparable men in violation of the FLSA, Plaintiffs failed to offer evidence connecting that end-result to a single, FLSA-violating policy that corporate-level employees directed the branch managers to carry out. Id . at *27. The Court concluded that because individual defenses could not be shown by common proof, decertification was proper. For these reasons, the Court granted Defendant’s motion for decertification. Olukayode, et al. v. UnitedHealth Group , 2021 U.S. Dist. LEXIS 143851 (D. Minn. Aug. 2, 2021). Plaintiffs, a group electronic medical record (“EMR”) software support consultants, filed a class and collective action alleging that Defendant misclassified them as independent contractors and thereby failed to pay overtime compensation in violation of the FLSA and the New York Labor Law (“NYLL”). The Court previously had granted conditional certification of a collective action. Defendant subsequently filed a motion for decertification of the collective action. Plaintiffs also filed a motion for class certification of their NYLL claims pursuant to Rule 23. The Court granted Defendant’s motion and denied Plaintiffs’ motion. The consultants were paid hourly and worked on projects in different states with different clients to perform “at the elbow” training services under the direction of a project manager. Id . at *5. During projects, consultants regularly worked over 40 hours in a workweek and were not paid overtime compensation. Defendant contended that the consultants’ experiences varied considerably in four key respects, including: (i) the amount of interaction between the consultants and Defendants’ employees; (ii) the amount and kind of training; (iii) the project managers’ expectations; and (iv) the consultants’ hours and wage negotiations. During the Maine Health project, the consultants had different memories of how training was conducted, the level of interaction with project managers, and the required timekeeping methods. Further, some consultants negotiated their pay rate, and some did not. The consultants on the New York projects also had varying accounts of their working interactions with project manager, with timekeeping policies, and with training. In the Maine Health project, there were several different locations with different project managers and therefore numerous accounts of the level of control and training. Defendants argued that consultants’ work experiences were materially different and varied considerably among consultants and projects. Plaintiffs argued that the distinctions were superficial, and that the opt-in Plaintiffs were similarly-situated because they were all paid hourly, provided support to Defendants’ clients, had a dress code, and attended pre-project orientations. Id . at *19. The Court agreed with Defendants. It found that the consultants’ varying experiences had a direct bearing on four of the six elements of the economic realities test. Id. at *20. The Court reasoned that: (i) Defendants exerted different levels of control over consultants; (ii) consultants had different opportunities for profit, as established by their varying testimony about the ability to successfully negotiate a higher pay rate; (iii) the permanency of the relationship varied given the dissimilarities in project length, the ability to work for competitors simultaneously during projects, and the inconsistency of daily hours; and (iv) some consultants furnished their own equipment while others did not. Id. at *21-22. The Court therefore granted Defendants’ motion to decertify the collective action. In addition, the Court determined that significant and material disparities existed amongst the consultants’ experiences which would overwhelm any issues common to the class because Plaintiffs’ evidence varied from member to member. As a result, the Court ruled that common issues did not predominate, and it also denied Plaintiffs’ motion for class certification. Roberts, et al. v. RREAF Holdings, 2021 U.S. Dist. LEXIS 199715 (E.D. Ark. Oct. 18, 2021). Plaintiff, a leasing agent and assistant manager, filed a collective action alleging that Defendant failed to pay overtime compensation in violation of the FLSA. The parties jointly stipulated to conditional certification of a collective action, and after its independent analysis of the motion, the Court approved the stipulation. Plaintiff alleged that Defendant failed to include Plaintiff and other hourly position employees’ commissions in the calculation of their overtime rate for weeks in which he and other hourly position employees earned a commission and worked more than 40 hours per workweek. Plaintiff further asserted that Defendant’s pay practices were the same for all hourly workers and therefore at least 100 others were subject to the same policy. The Court found that Plaintiff made the requisite showing required to demonstrate at the conditional certification stage that he was similarly- situated to other members of the proposed collective action. Accordingly, the Court conditionally certified a collective action consisting of all current and former hourly-paid employees from November 1, 2018 to