18th Annual Workplace Class Action Report - 2022 Edition

196 Annual Workplace Class Action Litigation Report: 2022 Edition hiring authority. Taken together, the Court concluded that Plaintiffs’ testimony demonstrated that they did not all have the same role in or exercise the same amount of discretion over hiring, pay rates, and promotions, and that their district managers gave Plaintiffs’ recommendations on these issues differing amounts of weight. Id . at *36- 37. Accordingly, the Court found that Plaintiffs were not similarly-situated and granted Defendant’s motion to decertify the collective action. Ferjani, et al. v. Maximus Federal Services, Inc., Case No. 21-CV-60770 (S.D. Fla. July 21, 2021). Plaintiffs, a group of call center employees, 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. In response to the COVID-19 pandemic, Defendant implemented a process for daily health screening assessments for employees working in-person at the call center. The screening assessment required employees to answer a series of questions on a mobile application in order to determine whether employees were exhibiting any risk of COVID-19 infection in the workplace. Id . at 2. Plaintiffs alleged that the process took approximately 15 to 20 minutes every day and that they were not compensated for the time spent answering the health screening questions. Plaintiffs offered several declarations in which they outlined the allegations in their complaint. In response, Defendant submitted declarations from two managers and nine hourly employees, all of whom also utilized the mobile health assessment application and who attested that the process took between 20 and 40 seconds a day to complete. Defendant argued that although it was a uniformly applied policy to fill out the health assessment, the apparent impact of the policy on Plaintiffs was significantly different than other employees, and therefore they were not similarly-situated to the members of the proposed collective action. The Court opined that although there were significant disparities in the amount of time Plaintiffs spent taking the health assessment and the amount of time other employees claimed they spent, at this stage of the litigation it would be improper to make credibility determinations. The Court thus found that Plaintiffs sufficiently established that they were victims of a uniform policy and practice of Defendant. Accordingly, the Court reasoned that Plaintiffs made the requisite showing to demonstrate that they were similarly-situated to the members of the proposed collective action for purposes of conditional certification. For these reasons, the Court granted Plaintiff’s motion for conditional certification of a collective action. Gouldie, et al. v. Trace Staffing Solutions, 2021 U.S. Dist. LEXIS 206752 (M.D. Ga. Oct. 22, 2021). Plaintiff, a recruiter, filed a collective action alleging that Defendant misclassified recruiters as exempt employees 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 denied. In support of his motion, Plaintiff offered his own declaration in which he averred that there were other recruiters employed by Defendant who performed the same job duties as he did and who were also classified as exempt employees and thereby not paid overtime compensation for hours worked over 40 in a workweek. The Court determined that Plaintiff sufficiently alleged that there were 56 other employees with similar job requirements and pay provisions. However, the Court opined that Plaintiff failed to adduce any evidence that other employees wished to opt-in to the collective action. The Court reasoned that without more, it had no way of discerning what percentage of those 56 individuals would want to be part of the collective action. The Court held that it could not grant conditional certification based on a singular sentence in Plaintiff’s declaration regarding Plaintiff’s "experience and observations.” Id . at *16. The Court concluded that based on the very limited record, there was no other evidence, affidavits, or consents to join from any of the 56 individual recruiter, and without more, the Court was not satisfied that there were others who wanted to be part of the collective action. The Court explained that pertinent case law established that "unsupported expectations that additional Plaintiffs will subsequently come forward" were insufficient. Id . at *17. Accordingly, the Court denied Plaintiff’s motion for conditional certification of a collective action. Gutierrez, et al. v. Food Bazaar, 2021 U.S. Dist. LEXIS 115552 (S.D. Fla. Jan. 4, 2021). Plaintiff, a grocery store employee, filed a collective action alleging that Defendants failed to pay overtime compensation in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court denied. In support of his motion, Plaintiff submitted only his own declaration. Defendants argued that Plaintiff failed to meet the required standard under 29 U.S.C. § 216(b) because he did not provide proper evidence on job duties, work requirements, and compensation plans. The Court determined that Plaintiff failed to make a sufficient factual showing that additional, similarly-situated potential Plaintiffs desired to opt-in to the litigation.