18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 255 the foreign workers. The Court rejected this argument. It opined that Defendant was not hired by the government to perform certain tasks; rather, it voluntarily decided to apply to be a sponsor organization and operate an au pair program, and a condition of doing so was complying with the applicable regulations. Id . at. *18. The Court reasoned that Defendant was simply a company operating in a heavily regulated industry to perform a task, and was not protected by sovereign immunity. Defendant further argued that Plaintiffs’ state wage & hour claims were preempted by federal law and regulations by field preemption and conflict preemption. The Court disagreed with that position. It held that the First Circuit had provided comprehensive analysis of the specific au pair program regulations previously, and found no intent by the State Department to displace state wage regulation in any context. The Court determined that the First Circuit had opined that the federal government had “a strong interest in seeing that the au pair program is run according to its specifications, but there is nothing to suggest that interest is adverse to requiring sponsors to be jointly liable with host families for ensuring au pairs are paid in accordance with state minimum wage laws.” Id . at *23. For these reasons, the Court denied Defendant’s motion to dismiss. (xvi) Independent Contractor Issues In Wage & Hour Class Actions Altare, et al. v. Vertical Reality Manufacturing, LLC, 2021 U.S. Dist. LEXIS 82994 (S.D. Fla. April 30, 2021). Plaintiffs, a group of equipment transportation drivers, filed a collective action alleging that Defendant misclassified drivers as independent contractors and thereby failed to pay them overtime compensation and minimum wages in violation of the FLSA. Defendant filed a motion for summary judgment arguing that Plaintiffs were independent contractors, and that even if the Court determined that they should be classified as employees, they were exempt from the FLSA requirements under the Motor Carrier Act (“MCA”) exemption. The Court denied Defendant’s motion. It concluded that there were genuine issues of material fact as to whether Plaintiffs were employees or independent contractors. The Court noted that the record demonstrated that Defendants controlled the logistics of Plaintiffs’ assignments, but not the manner in which to complete them. Further, the evidence showed that assignments could take weeks to complete, after which when they were completed Plaintiffs would return to Miami and be asked to stay in Miami while waiting for their next assignment. However, Plaintiffs were able to accept assignments they wanted and reject others without consequence, and Plaintiffs were permitted to have additional employment elsewhere. The parties disputed whether Defendants trained Plaintiffs in their job duties. The Court explained that the record did not conclusively indicate that Plaintiffs ever took other employment. Id . at *11-12. Accordingly, the Court concluded that on the record, it could not make a finding as a matter of law as to whether Plaintiffs were independent contractors or employees. In addition, the Court ruled that there was conflicting and unclear evidence as to the duties Plaintiffs performed during a given assignment, the vehicles Plaintiffs drove, the weights of those vehicles, and when Plaintiffs drove those vehicles. Without more, the Court reasoned that it could not make a finding as a matter of law whether Plaintiffs were covered employees under the MCA. Accordingly, the Court denied Defendants’ motion for summary judgment. Colosimo, et al. v. Flagship Resort Development Corp. , 2021 U.S. Dist. LEXIS 62348 (D.N.J. March 31, 2021). Plaintiffs, a group of timeshare salespeople, filed a collective action alleging that Defendant misclassified salespeople as independent contractors and thereby failed to pay them overtime compensation in violation of the FLSA. Defendant filed a motion for summary judgment, arguing that Plaintiffs could not establish that they worked over 40 hours in any workweek. The Court granted the motion. Defendant conceded for purposes of the motion only that the Court could assume that Plaintiffs were all employees covered by the FLSA. Id . at *10. The Court thus turned to the issue of whether there was evidence in the record to establish that Plaintiffs worked in excess of 40 hours per week. Defendant did not record or capture the time prior to the start of a timeshare tour and/or the time achieved once the final tour ended. Id . at *12. Plaintiffs all agreed that the workday began at 8:30 or 9:00 a.m., but alleged different times of departure in their deposition testimony. Plaintiff Colosimo stated that if not actively engaged with a customer and there were no tours waiting, she would leave at 5:00 p.m., while other Plaintiffs asserted anywhere between 3:00 p.m. and 6:00 p.m. Defendant argued this evidence was inconsistent and misleading, and undermined any similarity between the Plaintiffs. Id . at *14. Moreover, Plaintiffs rarely worked five days a week, and none of them could offer concrete evidence of working in excess of 40 hours a week. The Court held that even giving every inference to Plaintiffs, their unsubstantiated deposition testimony failed because it was predicated upon speculation and lacked any evidentiary support. Id . at *17. Due to the disparate working hours for each Plaintiff on any given day or workweek and varying attendance records