18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 171 workweek and 171 hours per 28-day pay period without receiving overtime compensation for that work, and that all employees were paid in the same manner. Id . at *7. Defendant asserted that Plaintiffs failed to establish that they were similarly-situated to all hourly-paid employees. The Court found that Plaintiffs offered sufficient evidence to show that all members of the proposed collective action were subject to a common policy or plan of failing to pay overtime compensation for hours worked over 40 in a workweek. The Court therefore determined that Plaintiffs had made the modest requisite showing to establish that they were similarly-situated to other employees of the Water Department and Police Department who were not paid overtime wages. For these reasons, the Court granted Plaintiffs’ motion and granted conditional certification of two collective actions. Tremols, et al. v. Juan Barcenas Insurance & Financial Services, 2021 U.S. Dist. LEXIS 201729 (W.D. Ark. Oct. 25, 2021). Plaintiff, an account manager, filed a collective action alleging that Defendant, an insurance agency, misclassified account managers as exempt employees and thereby failed to pay them overtime compensation in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court granted. Plaintiff asserted that he and other account managers regularly worked over 40 hours in a workweek without being paid overtime compensation. In support of his motion for conditional certification, Plaintiff offered his own affidavit, in which he stated that he was aware of 10 to 15 other account managers at his office location who were subjected to the same policy of failing to provide overtime compensation. Plaintiff contended that all account managers had the same job duties of making sales calls to insurance policy customers. Defendant argued that Plaintiff failed to identify similarly-situated employees and that Plaintiff’s affidavit was devoid of specific facts sufficient to support the motion for conditional certification. However, the Court disagreed. It held that Plaintiff’s affidavit attested that based on his conversations and personal knowledge, other account managers were not paid overtime compensation. The Court ruled that Plaintiff had made the requisite showing required to demonstrate that he was similarly-situated to members of the proposed collective action. For these reasons, the Court granted Plaintiff’s motion for conditional certification of a collective action. West, et al. v. Bullrock, 2021 U.S. Dist. LEXIS 125762 (D. N.Dak. May 4, 2021). Plaintiffs, a mix technician and a saltwater disposal operator, filed 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, and the Court granted the motion. Plaintiffs alleged that they and other workers like them were typically scheduled for 12-hour shifts, 7 days a week, and were paid a salary without payment for overtime hourly over 40 in a workweek. Id . at *2. In support of their motion, Plaintiffs offered their own declarations in which they averred that all mix technicians and operators had similar job duties, were subject to the same pay practice and exemption classification, and they were uniformly deprived of overtime. The declarations further asserted that there were similar job duties between mix technicians and operators and other individuals who worked in these positions and that they were paid in the same scheme, i.e ., they did not receive overtime pay, but instead received a salary. Id . at *8. The Court ruled that Plaintiffs sufficiently demonstrated that they were similarly- situated to the members of the proposed collective action. For these reasons, the Court granted Plaintiffs’ motion for conditional certification of a collective action. (ix) Ninth Circuit Boumaiz, et al. v. Charter Communications LLC, 2021 U.S. Dist. LEXIS 102608 (C.D. Cal. May 19, 2021). Plaintiff, a sales representative, filed a class action alleging that Defendant failed to provide accurate wage statements in violation of the California Labor Code and California’s Unfair Competition Law (“UCL”). After discovery, Plaintiff filed a motion for class certification, which the Court denied. The Court held that Plaintiff failed to satisfy the typicality and adequacy requirements of Rule 23(a). The Court also ruled that Plaintiff could not serve as class representative for the proposed class because: (i) her claims for § 226 violations were time- barred, (ii) Plaintiff lacked standing to seek injunctive relief under the UCL, and (iii) Plaintiff could not assert defenses on behalf of putative class members who were subject to arbitration agreements. First, the Court noted that Plaintiff’s complaint failed to plead viable § 226 violations and instead alleged monetary losses. Therefore, the Court reasoned that Plaintiff failed to pursue "actual damages" as a theory of liability such that a three-year statute of limitations would apply. The Court opined that the complaint did not specifically allege that class members were entitled to specified § 226 penalties for wage statement violations, and therefore a one-year statute of limitations applied to the claims. Id . at *10-11. Since Plaintiff was terminated in August 2017, and was