18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 189 account for time worked when employees clocked-in, were unlawful. Under Defendant’s policy, pay began at the scheduled start time, not the employee’s punch time because it assumed that an employee was not working until the start time per its formal policy. The Court held that the question of whether an employee was or was not working during that time would require individualized inquiries, and was not subject to common proof. Plaintiff also sought to certify a class of employees whose non-discretionary bonuses were not factored into the regular rate of pay for overtime rate calculation. The Court determined that Plaintiff failed to show a common policy or practice of improper calculations. The Court noted that Plaintiff’s expert reviewed a sample of Defendant’s payroll data, and could not find any instances where an employee’s overtime pay rate did not factor in the non- discretionary bonuses. The Court held that without evidence of a uniform policy or practice, individual inquiries would predominate. In addition, Plaintiff alleged that at several locations, Defendant maintained a policy of requiring employees to remain on the premises during their rest breaks. The Court, however, observed that class certification was precluded due to conflicting testimony from both parties and Defendant’s written policy specifically outlining that employees were free to leave during rest breaks. The Court reasoned that Plaintiff’s allegations that some employees were reprimanded for leaving during rest breaks or believed that they could not leave would require individualized inquiries into each employee’s beliefs and experiences. Finally, Plaintiff sought to certify a class of employees subjected to Defendant’s alleged unlawful practice of not providing proper second and third meal breaks. The Court opined that there was conflicting testimony from both parties on whether employees were provided second and third meal breaks, such that individual questions would predominance on those claims as well. For these reasons, the Court ruled that Plaintiff failed to meet the Rule 23 commonality and predominance requirements, and denied class certification. Woodburn, et al. v. City Of Henderson, 2021 U.S. Dist. LEXIS 228827 (D. Nev. Nov. 29, 2021). Plaintiffs, a group of current and former corrections officers, filed a collective action alleging that Defendant, the City of Henderson (“the City”), 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 a collective action consisting of all corrections officer employed by the City over the previous four years. The City argued that Plaintiffs were subject to mandatory arbitration of their claims under the parties’ collective bargaining agreements, and thus they were not similarly-situated to employees not subject to the agreements. The Court rejected the City’s argument. It found that the agreements did not constitute a binding contract between the parties. The City further contended that Plaintiffs failed to allege that they were subject to a single policy or plan that violated the FLSA. The Court ruled this contention was without merit, since at the initial stage of conditional certification, Plaintiffs must only provide substantial allegations to show that the members of the proposed collective action had legal or factual similarities material to the applicable FLSA claims. Id . at *21. Plaintiffs offered declaration testimony in support of their allegations averring that they and other similarly- situated corrections officers were required to perform integral and indispensable pre-shift work such as changing into work uniforms, checking assignment sheets in order to report to their work stations, meeting with the outgoing officers, checking in with their supervisors, and picking up required materials. Plaintiffs also alleged that they were required to do integral and indispensable post-shift work debriefing with incoming corrections officers, changing out of their uniforms, and returning required materials. Id . at *22. Plaintiffs all contended that they were not paid for the time spent doing the pre-shift and post-shift duties. The Court found that with Plaintiffs’ detailed allegations about the off-shift duties that corrections officers were required to perform, Plaintiffs made the requisite showing necessary to demonstrate that they were similarly-situated for purposes of conditional certification. For these reasons, the Court granted Plaintiffs’ motion for conditional certification of a collective action. (x) Tenth Circuit Buffington, et al. v. Ovintiv USA LLC, 2021 U.S. Dist. LEXIS 132615 (D. Colo. July 16, 2021). Plaintiff, a safety consultant, filed a collective action alleging that Defendants misclassified safety consultants as independent contractors 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 sought to represent the members of a collective action consisting of "all safety consultants who worked for, or on behalf of [Defendants] during the past 3 years who were classified as independent contractors and paid a day-rate with no overtime.” Id . at *3. In support of his motion, Plaintiff offered his own declaration in which he stated that he was treated as an independent contractor and paid a flat sum or "day-rate" for each day that he worked,