18th Annual Workplace Class Action Report - 2022 Edition

194 Annual Workplace Class Action Litigation Report: 2022 Edition independent assessment of Plaintiff’s motion. It held that Plaintiff made a sufficient showing that the putative collective members were subject to Defendant’s single decision, policy, or plan that violated the FLSA. For these reasons, the Court granted Plaintiff’s motion for conditional certification of a collective action of all site paramedics employed over the previous three years. Robertson, et al. v. Rep Processing LP , 2021 U.S. Dist. LEXIS 177118 (D. Colo. Sept. 16, 2021). Plaintiff, a welding inspector, filed a collective action alleging that Defendant misclassified inspectors as independent contractors and thereby failed to pay them overtime compensation in violation of the FLSA. Plaintiffs filed a motion for conditional certification of a collective action, which the Court granted. Plaintiff sought conditional certification of a collective action consisting of “employees staffed through Kestrel Field Services, Inc. who worked for or on behalf of REP Processing, LLC d/b/a Rimrock Energy Partners and who were paid according to its day rate plan in the past three years (the "Day Rate Inspectors").” Id . at *3. In support of his motion for conditional certification, Plaintiff submitted his own declaration in which he contended that the worked 60-to 72 hours per week and was paid a flat sum “day rate” which did not ever include payment for overtime compensation. Id. at *4. Plaintiff also offered a daily pay rate schedule from 2019 ("2019 Rate Schedule"), which showed his day rate pay and the day rate pay of other inspectors. Defendant argued that Plaintiff failed to establish that it had a policy, decision, or plan that violated the FLSA. The Court, however, opined that the 2019 Rate Schedule was sufficient to show that there was a policy to pay inspectors a day rate despite how many hours they worked in a workweek. Defendant also argued that it did not actually employ field inspectors and therefore it could not be liable for any FLSA violations. The Court held that this argument went to the merits of Plaintiff’s claims and was therefore unsuitable for consideration at this stage of conditional certification. Defendant further argued that if conditional certification was granted, the collective action definition should be modified because Plaintiff failed to show that all inspectors who worked on all projects were subject to the same policy, and only that other welding instructors who worked at the same three locations as Plaintiff were paid according to the 2019 Rate Schedule. Id. at *8. The Court rejected this argument. It ruled that in actuality, the 2019 Rate Schedule listed several types of inspectors and that Defendant failed to show that other locations were not subject to the same policy. The Court concluded that Plaintiff met his burden for conditional certification, and therefore it granted Plaintiff’s motion. (xi) Eleventh Circuit Balassiano, et al. v. Fogo De Chao Churrascaria Orlando, 2021 U.S. Dist. LEXIS 98172 (M.D. Fla. Jan. 7, 2021). Plaintiff, a restaurant employee, filed a class action alleging that Defendants failed to pay minimum wage in violation of Florida’s minimum wage provision in the Florida Constitution. Plaintiff filed a motion for class certification pursuant to Rule 23, which the Magistrate Judge recommended be denied. On Rule 72 review, the Court adopted the recommendation of the Magistrate Judge, and denied the motion. Plaintiff sought to certify a class that he defined as: all servers, bartenders, and gauchos who worked for Defendants within Florida during the five years preceding the lawsuit’s filing who were not paid full and proper minimum wages as a result of Defendants’ illegal tip pooling practices. Defendants contended that the class would create an impermissible "fail-safe" class, and it included a diverse group of claims with highly individualized claims. The Magistrate Judge determined that Plaintiff failed to meet the commonality or typicality requirements of Rule 23(a). The Magistrate Judge reasoned that the three groups of tipped employees included in the class definition – (i) those paid on a per shift basis, plus tips; (ii) tipped employees who worked hours that had not been compensated at the statutory federal minimum wage; and/or (iii) tipped employees who had worked overtime, but had not received compensation for such overtime – were not sufficiently similar to have common questions of law and fact resolved on a class-wide basis. However, the Magistrate Judge held that Plaintiff was not typical to the class members he sought to represent because he worked as a gaucho, and therefore his claims and defenses were not typical of that of the rest of the class, including the servers and bartenders. The Court agreed with the Magistrate Judge and it adopted the report and recommendation in its entirety. Blandon, et al. v. Waste Pro USA, Inc., 2021 U.S. Dist. LEXIS 243235 (M.D. Fla. Dec. 21, 2021). Plaintiffs, a group of waste disposal delivery drivers, filed a collective action alleging that Defendant failed to pay overtime compensation in violation of the FLSA. The Court previously had granted Plaintiffs’ motion for conditional certification of a collective action. Following discovery, Defendant filed a motion to decertify the collective action, and the Magistrate Judge recommended that the Court grant the motion. Plaintiffs contended that they all