18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 199 Florida or Alabama, working under a Piece-Rate compensation plan, under the titles or positions of Electrical Installer, Installer, Technician, Rough and Trim Installer, Rough and Trim Electrician, Electrician, Helper, and any other job titles previously or currently used to describe persons working on a Piece-Rate basis” over the previous three years. Id . at *3. In support of his motion, Plaintiff offered several declarations, which stated that Defendant paid installers directly on a piece-rate basis, and the installers then paid helpers an unspecified amount at their discretion. Id . at *7. In response, Defendant submitted its own declarations that stated that some installers were paid on a piece-rate basis and some were paid on an hourly basis. Defendant also offered pay records showing the different rates and manners of compensation. The Court observed that it was inappropriate to grant conditional certification with three separate methods of payment to Defendant’s employees, including the piece-rate pay, hourly pay, and a discretionary portion of pay as assigned by the electrician/installer. The Court also reasoned that individual inquiries would be required to determine how each collective action member was paid, how they recorded their time, and whether or not they recorded their time accurately. For these reasons, the Court determined that Plaintiff failed to meet the burden necessary for his claim that similarly- situated employees existed. Accordingly, the Court denied Plaintiff’s motion for conditional certification of a collective action. Swarthout, et al. v. Freightcenter, Inc., 2021 U.S. Dist. LEXIS 139135 (M.D. Fla. May 10, 2021). Plaintiffs, a group of inside sales representatives, 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 Court granted the motion. Defendant employed inside sales representatives in three positions, including Inside Sales Managers ("ISM"), Logistics Account Managers ("LAM"), and Carrier Sales Representatives ("CSR"). The LAMs and CSRs worked together as part of the sales force, and their primary job duties were generating sales to customers or potential customers and generating sales with freight carriers in connection with sales made to customers or potential customers. Id . at *4. Plaintiffs claimed that sales representatives, including the LAMs, ISMs, and CSRs, were not "outside sales representatives" under the FLSA overtime exemption. Id. Plaintiff further alleged that they regularly worked over 40 hours in a workweek and since they were misclassified as exempt employees, they did not receive overtime compensation. Plaintiffs sought conditional certification of a collective action consisting of all employees who: (i) had primary job duties of generating sales to customers or potential customers or generating sales with carriers in connection with sales made to customers or potential customers; (ii) were classified as exempt; (iii) worked more than 40 hours in a workweek during the relevant time period; and (iv) were not paid overtime compensation. Id . at *4-5. The Court determined 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 granted Plaintiffs’ motion for conditional certification of a collective action. Wallen, et al. v. Svensk Management, 2021 U.S. Dist. LEXIS 120656 (S.D. Fla. March 22, 2021). Plaintiffs, a group of pool service technicians, 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 support of their motion, Plaintiffs offered their own affidavits plus the declarations of two other similarly-situated employees. Plaintiffs all asserted that they shared the same job title and duties as Plaintiffs "were subject to the same illegal pay practices" because Defendants lacked a timekeeping method, and were paid either no overtime or arbitrary overtime amounts, regardless of hours worked, over a similar time period. Id. at *3. Defendant argued that Plaintiffs failed to provided sufficient evidence of other workers who wished to join the lawsuit and that Plaintiffs failed to show that they and other employees were subject to Defendant’s common scheme to withhold overtime pay. Defendants also argue that the resolution of Plaintiffs’ claims for unpaid overtime wages would require individualized consideration of each employee’s hours, thereby making conditional certification unmanageable. Id . at *5-6. The Court held that Plaintiffs made the requisite showing necessary to demonstrate that they were similarly-situated to the members of the proposed collective action. The Court noted that Plaintiffs attested that all service technicians performed the same tasks and duties in the same or similar geographic area, and were subject to the same alleged illegal pay and timekeeping policies. Plaintiffs also asserted that they personally knew of others who wished to join the lawsuit. The Court found that Plaintiffs satisfied the requisite burden of demonstrating that a reasonable basis existed to believe