18th Annual Workplace Class Action Report - 2022 Edition

270 Annual Workplace Class Action Litigation Report: 2022 Edition drivers’ actual costs or reimburse drivers using a reasonable approximation of the actual vehicle costs associated with making deliveries. Plaintiff contended that § 531.35 did not itself set forth a methodology for calculating reimbursement of expenses. However, the Magistrate Judge opined that by the plain language of the statute, Plaintiff’s interpretation would require the Court to ignore the language of § § 531.32(c) and 778.217, which were incorporated by reference in the anti-kickback regulations and contained the U.S. Department of Labor’s general interpretations with respect to the expenses that were reimbursed by the employer so long as the amount of "reimbursement reasonably approximates the expenses incurred.” Id . at *21. Accordingly, the Magistrate Judge recommended that the Court grant Defendant’s motion for partial summary judgment, and deny Plaintiff’s motion. Bradford, et al. v. Team Pizza, Inc. , 2021 U.S. Dist. LEXIS 200773 (S.D. Ohio Oct. 19, 2021). Plaintiff, a pizza delivery driver, filed a collective action alleging that Defendant failed to properly claim a tip credit from the wages of pizza delivery drivers and required delivery drivers to pay for automobile expenses and other job- related expenses out of pocket without reimbursement in violation of the FLSA and Ohio wage & hour laws. Defendant filed a motion for partial summary judgment on the issue of whether reimbursement based on a reasonable approximation of the actual vehicle costs was allowed under the FLSA. Plaintiff argued that 29 C.F.R. § 531.35 was genuinely ambiguous and, for an employer to sufficiently reimburse its delivery driver employees for vehicle-related costs under the FLSA, the employer must either reimburse drivers’ actual costs or reimburse drivers using the Internal Revenue Service ("IRS") mileage reimbursement rate. Id . at *3. The Magistrate Judge agreed with Defendant. It concluded that in order for an employer to sufficiently reimburse its pizza delivery driver employees for vehicle-related costs under the FLSA, the employer must either reimburse drivers’ actual costs or reimburse drivers using a reasonable approximation of the actual vehicle costs associated with making deliveries. Id . at *9-10. On Rule 72 review, the Court adopted the Magistrate Judge’s report. The Court held that the text and structure of 29 C.F.R. § 531.35, which incorporates 29 C.F.R. § 531.32(c), and which in turn incorporates 29 C.F.R. § 778.217, was not genuinely ambiguous as it related to the costs associated with a pizza delivery driver operating a vehicle for work. Id . at *9. For these reasons, the Court found that the Magistrate Judge’s legal conclusions were not contrary to law. Accordingly, it granted Defendant’s motion. Cazares, et al. v. Host International, Inc., 2021 U.S. App. LEXIS 24633 (9th Cir. Aug. 18, 2021). Plaintiff, an airport employee, filed a class action alleging that Defendant failed to pay for time spent passing through airport security checks in route to their workstation at the Admiral Club in a secured portion of Los Angeles International Airport. Plaintiff asserted that Defendant’s pay policy violated the California Labor Law. The District Court granted Defendant’s motion to dismiss for failure to state a claim. On appeal, the Ninth Circuit affirmed the District Court’s ruling. The Ninth Circuit found that the District Court correctly ruled that Plaintiff failed to allege facts sufficient to show he was subject to any level of control by Defendant during the security checks. Plaintiff had alleged that Defendant violated his rights to meal breaks under § 512 of the California Labor Code. Plaintiff contended that because time spent going through security should have been treated as "hours worked," his shifts started earlier than recorded by Defendant’s clock-in procedure, thereby rendering his meal breaks late. Id. at *6. The Ninth Circuit noted that the meal break claim failed for the same reason as the wage claim. Plaintiff also asserted that he was impermissibly subjected to on-premises meal breaks because he did not have time to leave the airport and return within 30 minutes because of the security screenings. The Ninth Circuit rejected this claim as well, as Plaintiff failed to offer any allegation that Defendant barred or discouraged him from leaving his worksite at the Admiral Club during his meal break. Likewise, Plaintiff did not allege facts establishing that he was required to take his rest period at a particular designated area that culminated in his break being cut short. Accordingly, the Ninth Circuit held that Plaintiff’s rest break claim failed because he did not allege either that he was required to take a rest period at a particular designated area or that there were no other closer areas to take a rest period. The Ninth Circuit therefore affirmed the District Court’s ruling granting Defendant’s motion to dismiss. Clarke, et al. v. AMN Services, LLC, 2021 U.S. App. LEXIS 3360 (9th Cir. Feb. 8, 2021). Plaintiffs, two former traveling clinicians, filed a class and collective action alleging that Defendant improperly excluded Plaintiffs’ weekly per diem payments from their normal rate of pay in violation of the Fair Labor Standards Act (“FLSA”) and the California Labor Code. Plaintiffs’ claims focused on Defendant’s per diem payments, which Defendant