18th Annual Workplace Class Action Report - 2022 Edition

200 Annual Workplace Class Action Litigation Report: 2022 Edition that other similarly-situated employees desired to opt-in to the lawsuit. Id . at *8. For these reasons, the Court granted Plaintiff’s motion for conditional certification of a collective action. Wright, et al. v. Waste Pro USA, Inc ., 2021 U.S. Dist. LEXIS 68471 (S.D. Fla. April 6, 2021). Plaintiff, a waste collection driver, filed a collective action alleging that Defendant 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. Defendant filed a motion for reconsideration of the Court’s certification order pursuant to Rule 59(e). The Court denied Defendant’s motion. Defendant argued that the motion for reconsideration should be granted due to the recent Fifth Circuit’s decision in Swales v. KLLM Transp. Services., LLC , 985 F.3d 430 (5th Cir. 2021). Defendant asserted that: (i) there was no controlling law in the Eleventh Circuit to determine the conditional certification of a FLSA collective action; (ii) new evidence not available at the time of the conditional certification order was now available; and, alternatively (iii) the Court should certify its conditional certification order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Id . at *13-14. First, the Court found that the two-step conditional certification approach has long been the procedure used within the Eleventh Circuit in determining whether to grant conditional certification a collective action. Id . at *14-15. Moreover, the Court noted that no case law authorities outside of the Fifth Circuit had followed the Swales opinion in the three months since it was issued. Id . at *15. The Court ruled that Defendant’s argument regarding the availability of "new evidence" was unpersuasive, as the evidence cited to by Defendant was available before the initial order of conditional certification. Id . at *17. The Court reasoned that it would examine and consider any evidence presented at the decertification stage. The Court further opined that the issue was not suitable for interlocutory appeal. The Court thus declined to reconsider its conditional certification order, and denied Defendant’s motion. (xii) District Of Columbia Circuit Guzman, et al. v. Gf, Inc. , 2021 U.S. Dist. LEXIS 111433 (D.D.C. June 14, 2021) . Plaintiffs, a group of tipped restaurant employees, filed a collective action alleging that Defendant violated various provisions of the FLSA. Plaintiffs filed a motion for conditional certification of a collective action, which the Court granted in part and denied in part. Plaintiff sought conditional certification of a collective action consisting of "all current and former tipped bussers, servers, and bartenders" who worked at Il Canale from April 6, 2017 to April 6, 2020. Id . at *7. As to overtime wage violations, Plaintiffs provided affidavits from a server and a busser, who attested that they were not paid overtime and that they spoke with others in their positions who were also not paid overtime compensation. The Court found that the overtime claims rose above mere speculation, and therefore Plaintiffs had made the required showing with respect to their overtime pay claim. As to Plaintiffs’ allegation that Defendant failed to pay the proper tip-credit minimum wage, the Court held that Plaintiffs failed to meet their burden. Plaintiffs attested that Defendant adopted the minimum wage tip-credit a month or more after a new rate was enacted, but failed to provide any evidence that others were subjected to these alleged violations. Thus, the Court denied conditional certification with respect to Plaintiffs’ tip-credit minimum wage claim. Plaintiffs also alleged that Defendant unlawfully retained employees’ tips by imposing a system of fines for mistaken orders or using cellphones during working hours. The Court held that the fines were sufficiently similar for all employees so as to conclude that all tipped employees were similarly-situated with regards to the fines. Plaintiffs also alleged that Defendants unlawfully retained a percentage of the employees’ tip pool by compensating tipped employees with lunches instead of tips. The Court narrowed Plaintiffs’ purported collective action as to this claim to include only servers and bussers because Defendant did not typically have a bartender on-duty at lunch. Finally, the Court held that Plaintiffs had shown that other servers, bartenders, and bussers were similarly- situated with regard to Defendants’ failure to provide statutorily required notices regarding tip-credits, as no employees received these notices. The Court therefore granted conditional certification of: (i) the overtime pay claim; (ii) the tip-retention claim based on fines imposed; and (iii) the notice claims. Id . at *13. The Court also granted conditional certification for a class of bussers and servers as to the tip-retention claim based on Defendants’ practice of compensating workers through lunches in lieu of tips. Id . at *14. Finally, the Court denied certification as to the claim that Defendant failed to pay the effective tip-credit minimum wage. Harris, et al. v. Medical Transportation Management , 2021 U.S. Dist. LEXIS 146896 (D.D.C. Aug. 6, 2021). Plaintiffs, a group of medical vehicle drivers, filed a collective action alleging that Defendant misclassified them as independent contractors and thereby failed to pay them overtime compensation in violation of the FLSA. The Court previously had granted Plaintiffs’ motion for conditional certification of a collective action, and 155 opt-in