18th Annual Workplace Class Action Report - 2022 Edition

170 Annual Workplace Class Action Litigation Report: 2022 Edition December 31, 2019 to whom Defendant paid a commission or bonus based on leasing sales made or a sales targets achieved in any such workweek that they also worked more than 40 hours. Id . at *8-9. Rodriguez, et al. v. Cutchall, 2021 U.S. Dist. LEXIS 223314 (D. Neb. Nov. 16, 2021). Plaintiffs, a group of pizza delivery drivers, filed a collective action alleging that Defendant failed to reimburse vehicle expenses in violation of the FLSA. Plaintiffs filed a motion for conditional certification of a collective action, and the Court granted the motion. Defendant argued that the Court should adopt the approach taken by the Fifth Circuit in S wales v. KLLM Transport. Services., LLC , 985 F.3d 430 (5th Cir. 2021), and "should rigorously enforce” the similarity requirement “at the outset of the litigation." Id . at *5. The Court rejected this argument. It reasoned that multiple case law authorities had expressly refused to follow Swales , and Defendant failed to presented any persuasive reason why the Court should deviate from the well-established two-step process under 29 U.S.C. § 216(b). In addition, the Court ruled that Plaintiff established a colorable basis that the members of the proposed collective action were victims of a single decision, policy, or plan. In support of their motion, Plaintiff presented evidence of Defendant’s policies regarding delivery drivers’ job duties, pay, and vehicle requirements. Id . at *5. The Court noted that the allegations in the complaint asserted that Plaintiffs were delivery drivers and all drivers shared the same written job description, were required to provide their own vehicles and maintain auto liability insurance, and that Defendant did not track delivery drivers’ vehicle expenses. Id . at *6. The Court ruled that Plaintiffs’ evidence made the requisite showing necessary to establish that they were similarly-situated to members of the proposed collective action for purposes of conditional certification. For these reasons, the Court granted Plaintiffs’ motion for conditional certification of a collective action. Scarpino, et al. v. Imagination Industries , 2021 U.S. Dist. LEXIS 53935 (D. Neb. March 19, 2021). Plaintiffs, a group of exotic dancers at an adult entertainment club, filed a collective action alleging that Defendants misclassified dancers as independent contractors and thereby failed to pay them minimum wages or overtime compensation, and required them to pay unlawful kickbacks in violation of the FLSA. Plaintiffs filed a motion for conditional certification of a collective action, which the Court granted. In support of the motion, Plaintiffs submitted their declarations, all of which attested they were employed by Defendant American Dream, classified as independent contractors, required to work on certain days, required to schedule shifts in advance, required to work a certain number of hours and perform a certain number of dances per shift, and were fined if they failed to do so. Id . at *17. The declarations also averred that dancers were not paid any wages and received only tip compensation, and that they were required to tip the DJ at the end of each shift. The declarations also stated that Defendants maintained control over their appearances. Further, the declarations asserted that all dancers were subject to Defendants’ policies and procedures. Defendant contended that Plaintiffs failed to establish that they were similarly-situated to the members of the proposed collective action. The Court ruled that Plaintiffs provided enough factual support to find that they were similarly-situated to the membership of the proposed collective action. The Court opined that Plaintiffs offered sworn declarations that Plaintiffs and members of the proposed collective action all worked at a single location owned and operated by Defendants, were all subject to the same working conditions, and were all classified as independent contractors and not paid overtime wages. The Court also reasoned that Plaintiffs’ allegations that Defendants required payment of house fees, late fees, penalties, and/or mandatory tip-outs were the types of allegations which could give rise to claims under the FLSA. Id . at *24. For these reasons, the Court granted Plaintiffs’ motion for conditional certification of a collective action. Smart, et al. v. City Of Hughes, Arkansas, 2021 U.S. Dist. LEXIS 25197 (E.D. Ark. Feb. 10, 2021). Plaintiffs, an employee in the City’s Water Department and an employee in the City’s Police Department, filed a collective action alleging that Defendant 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, one consisting of all hourly Water Department employees over the preceding three years and one consisting of all Police Department employees over the preceding three years. In support of their motion, Plaintiffs submitted their own declarations outlining their employment experiences. Plaintiff Smart asserted that Defendant paid employees subject to uniform employment policies and practices, including a uniform pay structure, and that they often worked over 40 hours per workweek without receiving overtime compensation. Smart also contended that all hourly-paid employees were paid in the same manner. Plaintiff Jackson averred that he and other hourly-paid employees frequently worked in excess of 40 hours per