18th Annual Workplace Class Action Report - 2022 Edition

190 Annual Workplace Class Action Litigation Report: 2022 Edition regardless of the number of hours worked each day or week. Id. Plaintiff contended that he often worked more than 12 hours each day, for weeks at a time, but was not paid compensation for such overtime, and that Defendants’ other safety consultants performed the same or similar jobs; were classified as independent contractors; and were paid a day-rate in the same manner under Defendants’ standard pay practice. Id . at *2-3. Plaintiff also submitted eight other declarations from safety consultants with varying job titles, which all described similar overtime violations. Defendants contended the allegations in the complaint were too conclusory and the declarations contained hearsay and statements unsupported by personal knowledge. The Court determined that the declarations, which were supported by the declarants’ personal experiences and observations, were sufficient to show that Defendant had a common policy that could be in violation of the FLSA. Although Defendants disputed Plaintiffs’ allegations, the Court noted that these arguments went to the merits of Plaintiff’s claims and were thus unsuitable to consider at the first stage of conditional certification. Accordingly, the Court granted Plaintiff’s motion for conditional certification of a collective action. Charbonneau, et al. v. Mortgage Lenders Of America LLC , 2021 U.S. Dist. LEXIS 4537 (D. Kan. Jan. 11, 2021). Plaintiffs, a group of mortgage Loan Officers, filed a collective action alleging that Defendant failed to pay overtime compensation in violation of the FLSA. The Court previously had granted Plaintiff’s motion for conditional certification of a collective action for two groups of employees, including: (i) Team Leads, who were classified as exempt employees; and (ii) Loan Officers, who were classified as non-exempt employees. Following discovery, Defendant moved to decertify both of the collective actions. The Court denied the motion. The Court initially addressed the motion to decertify as it applied to the Team Lead collective action. Defendant argued that Plaintiffs could not prove that the Team Leads were similarly-situated to Loan Officers and therefore could not proceed on a representative basis with two plainly incongruous groups of Plaintiffs. The Court disagreed. The Court reasoned that the Team Leads were plainly similarly-situated, as they were all subject to the same employment settings, job titles, job descriptions, and job duties, worked at a single office, and were compensated via standard written agreements. The Court opined that Plaintiffs all asserted that they regularly worked more than 40 hours per week, and were all classified as exempt employees. The Court further determined that although individual damage awards might vary, that factor alone did not warrant decertification. Finally, the Court ruled that fairness and procedural considerations weighed in favor of collective adjudication as well. As to the Loan Officer collective action, the Court found that there was no dispute that all Loan Officers worked in the same location, performed the same duties, used the same timekeeping system, and were employed under identical agreements. Defendant contended that the disparate evidence regarding whether Loan Officers were directed to work off-the-clock, whether they did in fact work off-the-clock, and whether they reported any such alleged overtime pursuant to Defendant’s policies and procedures would lead to individual determinations unsuitable for collective action treatment. Plaintiffs asserted that all Loan Officers were subject to the same time policies that led to unpaid overtime compensation. The Court agreed that the evidence showed that Defendant maintained a company-wide policy under which Loan Officers were expected to work off-the- clock while out of the office on their phones and email, which resulted in unpaid overtime hours. The Court was thus satisfied that all Loan Officers’ claims were united by a common theory of liability. The Court held that Plaintiffs’ claims rested on common questions of law and similar facts regarding off-the-clock work. For these reasons, the Court denied Defendant’s motion to decertify the two collective actions. German, et al. v. Holtzman Enterprises , 2021 U.S. Dist. LEXIS 53141 (D. Colo. March 22, 2021). Plaintiffs, a group of hourly hair salon employees, filed a class and collective action alleging that Defendant failed to provide meal and rest breaks and failed to pay for pre-shift and post-shift work in violation of the FLSA and state wage & hour laws. Plaintiffs filed a motion for conditional certification of a collective action, which the Court granted. Plaintiffs submitted his own declaration that averred that Defendant utilized a common policy that prevented employees from taking bona fide meal breaks and did not provide for rest breaks in violation of the FLSA. Additionally, Plaintiffs provided testimony from one of Defendant’s former general managers Farryn Trease, which stated "making sure employees routinely received rest breaks was never a practice of management" and that "rest breaks were not encouraged." Id . at *4. Trease also stated that she was instructed by upper management "to audit employees’ time to make sure that a 30-minute meal break was deducted from employees’ pay if they had not clocked-out for a meal break,” and if the employee had "no-cut time," where the employee was not cutting hair, the practice was to deduct the break even if the employee was doing other work that was not specifically cutting hair. Id . at *4-5. Additionally, Trease explained that employees were told to