18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 193 justified in relying on that manifestation. Additionally, the Court found that Plaintiff’s request for certification would make the Court assume the existence of a singular intent to treat all operators as non-exempt, but there was nothing about being an hourly employee and being paid a bonus that, in and of itself, demonstrated any sort of unilateral contract. Id . at *10. The Court observed that it would have to determine whether or not Defendant wanted to treat every individual class members as non-exempt or exempt prior to ruling on whether or not Defendant breached any purported contract. Accordingly, the Court found that Plaintiff’s proposed class failed to meet the commonality requirement. The Court asserted that even if Plaintiff could meet the commonality requirement, the class would fail at the more rigorous Rule 23(b) predominance evaluation because the purported common question of whether Defendant breached its agreement to pay overtime would succumb to numerous individual issues. Id . at *12. Accordingly, the Court denied Plaintiff’s renewed motion for class certification. McMahon, et al. v. Breckenridge Grand Vacations, 2021 U.S. Dist. LEXIS 173970 (D. Colo. Sept. 14, 2021). Plaintiff, a sales broker for Defendant’s timeshare sales office, filed a collective action alleging that Defendant misclassified sales brokers as independent contractors and thereby failed to pay them overtime compensation and benefits in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court granted. In support of his motion, Plaintiff submitted his own declaration, Defendant’s office policy manual, and other forms. Plaintiff alleged that Defendant treated all sales brokers uniformly and all were classified as independent contractors. The Court found that Plaintiff’s allegations, in combination with the supporting documents he provided, showed a common policy or plan sufficient to establish that Plaintiff was similarly-situated to the membership of the proposed collective action. Defendant argued that Plaintiff failed to show that he or other sales brokers could be classified as an employee under the FLSA. However, the Court reasoned that at the stage of conditional certification proceedings, Plaintiff only need show that other similarly- situated workers existed and that they were all impacted by the same single decision, policy, or plan that allegedly violated the FLSA. For these reasons, the Court ruled that Plaintiff met the burden under 29 U.S.C. § 216(b), and accordingly, it granted Plaintiff’s motion for conditional certification of a collective action. Powell, et al. v. Kroger Co., 2021 U.S. Dist. LEXIS 13022 (D. Colo. Jan. 25, 2021). Plaintiffs, a group assistant store managers (“ASMs”), filed a collective action alleging that Defendant misclassified them as exempt employees and thereby failed to pay them overtime compensation in violation of the FLSA. Plaintiffs filed a motion for conditional certification of a collective action, and the Magistrate Judge recommended that the motion be granted. On Rule 72 review, the Court adopted the findings of the Magistrate Judge and granted the motion. In support of their motion, Plaintiffs offered their own declarations in which they averred that that they and the members of the proposed collective action all had substantially similar job duties and were subject to Defendant’s centralized, company-wide compensation policies and practices. Plaintiffs further asserted that ASMs received a salary and annual bonuses and were scheduled to work at least 45 hours per week, often worked through lunch and performed manual labor, and typically worked between 50 to 60 hours each week. Plaintiffs also stated that due to Defendant’s extensive policies and procedures, it maintained strict control, oversight, and direction over the work performed by ASMs. The Court ruled that Plaintiffs’ declarations 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 adopted the Magistrate Judge’s findings, and granted Plaintiffs’ motion for conditional certification of a collective action. Rapp, et al. v. HV Occupational Health Advisors Of America, LLC , 2021 U.S. Dist. LEXIS 184016 (D. Colo. Sept. 27, 2021) . Plaintiff, a paramedic, filed a collective action alleging that Defendants misclassified paramedics as exempt employees and thereby failed pay them all overtime compensation due in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court granted. Plaintiffs were paid a flat-rate bi-weekly salary of $1,920, or $50,000 per year. Plaintiffs contended that paramedics regularly worked more than 50 hours per week and routinely more than 65 hours per week, without being paid overtime compensation. Plaintiff sought to represent a proposed collective action of all site paramedics who worked for Defendants over the previous three years. Defendants did not contest conditional certification, and did not argue that the collective action members who were site paramedics or in titles similar were similarly- situated to Plaintiff. Defendants also did not argue that there were employees who performed similar duties to site paramedics but who were subject to a different policy, decision, or plan. The Court undertook an