18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 191 arrive 10 minutes early for their shifts and stay late without clocking-in for the time prior to and after shifts. The Court found that Plaintiffs’ allegations were sufficient to find that Plaintiffs were similarly-situated to the members of the proposed collective action. The Court ruled that according to the declarations and allegations, hourly employees, regardless of title, were required to work as hairstylists and were consistently required to forgo rest and meal breaks in addition to being asked to work off-the-clock. Id . at *6. For these reasons, the Court granted Plaintiffs’ motion for conditional certification of a collective action. Gray, et al. v. Delta County Memorial Hospital District , 2021 U.S. Dist. LEXIS 70642 (D. Colo. March 1, 2021). Plaintiff, a licensed nurse (“LN”), filed a collective action alleging that Defendant failed to pay overtime compensation in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court granted. Plaintiff alleged that she and other hourly patient care workers worked during on-duty meal breaks, prior to clocking- in to their shift, and after clocking-out of their shift, and that Defendant did not pay employees overtime for those hours worked. Id . at *2. Plaintiff alleged that Defendant utilized a uniform timekeeping, meal break, and overtime policies and procedures. Plaintiff contended that patient care employees were responsible for patient care during meal periods, and that they were frequently interrupted during the meal periods, and were therefore never completely released from their duties during the meal breaks as required under the meal period policy and applicable FLSA regulations. In support of her motion, Plaintiff submitted four declarations, which averred that they were frequently interrupted during their meal and rest breaks, that they were never completely relieved of their duties during their 30-minute meal periods, that their supervisors told them to show up early for their shifts, that they were told to clock-out within five minutes of their shift end-time, but that they frequently stayed in the range of 15 to 30 minutes after their shift to transfer patient care or finish paperwork. Id . at *12-13. Defendant contended that Plaintiff failed to present substantial proof of "a single decision, plan, or policy" related to lack of compensation for off-the-clock work happening before or after employees’ shift times or during meal periods. Id . at *13. Finally, Defendant argued that the matter was not appropriate for conditional certification of collective action because it would require individualized analyses of employee meal period and off-the-clock work. The Court opined that Defendant’s policy need not be tied to specific wording or a precise number of minutes in order to be uniform. Id . The Court further found it sufficient that the declarants alleged a single policy. The Court determined that Plaintiff pointed to many similarities among members of the putative collective action that suggested that collective treatment would be proper. Id . at *14. For these reasons, the Court held that Plaintiff met her burden for conditional certification, and it granted the motion. Guarriello, et al. v. Asnani, 2021 U.S. Dist. LEXIS 22737 (D. N.Mex. Feb. 5, 2021). Plaintiffs, a group of restaurant servers, filed a collective action alleging that Defendants failed to pay overtime compensation and minimum wage in violation of the FLSA. Plaintiffs filed a motion for conditional certification of a collective action, which the Court granted. Plaintiffs contended that they were paid a tipped-wage, but were required to perform non-tipped duties during a significant portion of their workday, such that their pay regularly went below the federal minimum wage. Plaintiffs further contended that Defendants miscalculated their overtime rate for hours worked in excess of 40 per workweek. Plaintiffs sought conditional certification of a collective action consisting of all servers over the past three years. In support of their motion, Plaintiffs offered their own declarations, certain discovery responses, Defendants’ "Cash Register Procedures," Plaintiff Guarriello’s overtime check stubs, and copies of Defendants’ tip-credit notice forms. Id. at *7. Defendants argued that Plaintiffs had not shown uniform policies that were applied in a manner that violated the FLSA. Defendant also contended that Plaintiffs’ claims were individualized because they had different duties, worked different shifts in different locations, and were subject to different managers. The Court held that Plaintiffs’ complaint, motion, and supporting exhibits met the requirements for conditional certification of a collective action because they contained substantial allegations that Plaintiffs and other servers were subject to the same illegal wage policy. Id . at *13. The Court reasoned that Plaintiffs established through their declarations that they and other servers: (i) performed various non-tipped duties that took up significant portions of their shifts; (ii) were subject to identical policies of being allowed or required to perform off-the-clock work; and (iii) were subject to a policy of tip retention due to unpaid customer bills, breakage, and register shortages. Id. Further, Plaintiffs submitted evidence that servers were "tipped employees," regardless of the location at which they worked and that all servers were subject to Defendants’ unlawful tip withholding policy. Id. The Court determined that Defendants’ arguments went to the merits of Plaintiffs’ claims and were therefore not appropriate for consideration at the