18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 197 The Court noted that no employee opt-in affidavits were furnished; and there were no sworn allegations that other employees had indicated a desire to opt-in. The Court also found that Plaintiff failed to make any allegations regarding the proposed collective action members’ job requirements or pay provisions. For these reasons, the Court ruled that Plaintiff failed to establish that other similarly-situated employees wished to opt-in and thus it denied the motion for conditional certification. Harapeti, et al. v. CBS TV Stations, Inc., 2021 U.S. Dist. LEXIS 241496 (S.D. Fla. Dec. 17, 2021). Plaintiff, a freelance journalist, filed a collective action alleging that Defendants 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. Following discovery, Defendants filed a motion to decertify the collective action, and the Magistrate Judge recommended that the Court grant the motion. Plaintiff asserted that she was paid at a rate of $210 per day, regardless of the number of hours she worked on any given day, and even when she worked over 40 hours in a workweek, she was never paid overtime compensation. Defendants argued that decertification was warranted because: (i) collective action members had disparate factual and employment settings; (ii) Defendants had defenses that were individual to each of the collective action members; and (iii) of various fairness and procedural considerations. Defendants asserted that eight of the nine opt-in Plaintiffs did not meet the collective action definition, and the remaining member was also not a viable member of the collective action because her claim was time-barred under the applicable limitations period. Plaintiff conceded that seven of the nine opt-in Plaintiffs were not members of the collective action conditionally certified by the Court, but that the one remaining opt-in with timely claims was similarly-situated to her. The Magistrate Judge found that based on Defendants’ deposition testimony from the remaining opt-in Plaintiff whose claim was not time-barred, she worked in a different role and had different job duties such that she was not similarly-situated. Accordingly, the Magistrate Judge recommended that Defendants’ motion for decertification be granted. McAnally, et al. v. Alabama Plumbing Construction, 2021 U.S. Dist. LEXIS 119330 (N.D. Ala. April 29, 2021). Plaintiffs, a group of plumbers and plumbers’ assistants, filed a collective action alleging that Defendant failed to pay overtime compensation in violation of the FLSA. Plaintiffs filed a motion for conditional certification of a collective action, and the Court denied the motion. Plaintiffs presented the sworn statements of two named Plaintiffs and one co-worker. The declarations all averred that Defendant required Plaintiffs to drive to their office location to pick up company work trucks and other supplies prior to going to job sites, and that they were not compensated for this time. The Court determined that although Plaintiffs presented evidence that Defendants’ policies applied to a number of other plumbers and assistants, the evidence did not establish existence of a common policy that applied to all plumbers and assistants. Further, Defendant offered evidence that approximately half of the plumbers and assistants: (i) did not report to the shop in the morning; and (ii) did not engage in the activities for which Plaintiffs alleged they were due overtime compensation. Id . at *11-12. The Court reasoned that the evidence showed that there were differences between even the named Plaintiffs as to the tasks for which they sought overtime compensation. The Court also concluded that an evaluation of Plaintiffs’ claims would require individualized analysis, thereby making conditional certification inappropriate. The Court further opined that besides one opt-in, Plaintiffs failed to demonstrate that there others who wished to opt-in to the action. The Court therefore ruled that Plaintiffs’ declarations failed to 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 denied Plaintiffs’ motion for conditional certification of a collective action. Morris, et al. v. MPC Holdings, 2021 U.S. Dist. LEXIS 170802 (D. Colo. Sept. 9, 2021). Plaintiff, a horizontal directional drilling inspector, 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 contended that inspectors were paid a day-rate and that when working over 40 hours per week, they did not receive overtime pay. In support of his motion, Plaintiff offered his own affidavit, an affidavit from another inspector who had the same experiences, and various documents demonstrating how Plaintiff was compensated while he was employed by Defendant. In opposition, Defendant argued that Plaintiff failed to show that the members of the proposed collective action were similarly-situated as they performed varying job duties. The Court found that Plaintiff met the requisite burden necessary at the conditional certification stage of asserting substantial allegations that the putative collective action members “were together the victims of a