18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 277 signed for or acknowledged their hours and pay; (iv) the accuracy of the records kept by the restaurant; and (v) whether Plaintiffs ever complained about their compensation. Id . at *2-3. Defendants submitted payroll records in support of their motion, which they contended demonstrated that Plaintiffs did not perform uncompensated work. However, Plaintiffs’ sworn declarations alleged that the time records were inaccurate and that Defendants instructed them to sign blank sheets of paper that did not include any hours or calculations when they signed them. The Court held that Plaintiffs’ testimony was sufficient to raise a genuine issue of material fact precluding summary judgment. Defendants also contended that they were entitled to summary judgment on the issue of whether they had actual or constructive knowledge of the alleged violations because none of the evidence established that Defendants had the requisite knowledge. However, the Court noted that several Plaintiffs testified that they were often asked to work later than their scheduled shifts, thereby resulting in overtime work, for which they were not paid. Accordingly, the Court held that a genuine issues of material fact exited as to whether Defendants had actual or constructive knowledge which precluded summary judgment. For these reasons, the Court denied Defendants’ motion for summary judgment. Waters, et al. v. Pizza To You, LLC, 2021 U.S. Dist. LEXIS 87604 (S.D. Ohio May 7, 2021). Plaintiffs, a group of pizza delivery drivers, filed a class and collective action alleging that Defendants failed to properly reimburse Plaintiffs for their vehicle expenses in violation of the FLSA, the Ohio Prompt Pay Act, and Ohio wage & hour laws. Defendants operated a number of pizza franchises in Ohio and reimbursed their delivery drivers at a per- delivery rate of $1 (which they switched to $1.25 in July 2019). According to Plaintiffs, each delivery required driving between 6.5 to 10 miles, which allegedly rendered Defendants’ reimbursement payments insufficient to cover Plaintiffs’ vehicle expenses. Plaintiffs further claimed that, because Defendants paid all delivery drivers minimum wages, any under-reimbursed expenses resulted in minimum wage violations under the FLSA. Plaintiffs filed a motion for summary judgment, and the Court granted the motion. The Court explained that in the pizza delivery context, the cost associated with delivering food for an employer is a "kickback" to the employer unless it was fully reimbursed, thereby triggering a minimum wage violation. Id . at *5. The Court opined that pursuant to the FLSA, employers are not permitted to "guess" or "approximate" a minimum wage employee’s expenses for purposes of reimbursing expenses, and thus the law requires employers to pay back the actual expenses incurred by the employee. Since this is a cumbersome task for deliveries, the Court noted that the U.S. Department of Labor has stated in its Field Operations Handbook that employers could either: (i) keep records of delivery drivers’ actual expenses and reimburse for them; or (ii) reimburse drivers at the IRS standard business mileage rate. Id . at *6. The Court ruled that Plaintiffs meet their burden by showing they were not compensated by an amount equal to the minimum hourly wage plus the mileage reimbursement rate set by the Internal Revenue Service. The Court ruled that Defendants failed to rebut Plaintiffs’ allegations with any showing that they tracked and paid actual expenses and paid an amount equal to the minimum hourly wage rate plus actual expenses. For these reasons, the Court granted Plaintiffs’ motion for summary judgment. Wesley, et al. v. Experian Information Solutions, Inc., 2021 U.S. Dist. LEXIS 35934 (E.D. Tex. Feb. 26, 2021). Plaintiffs, a group of Information Technology (“IT”) employees, filed a collective action alleging that Defendant failed to pay for all hours worked in violation of the FLSA. Defendant filed a motion for summary judgment, which the Court granted. Defendant maintained an On-Call, Standby and Call-Back Time Policy (the "Policy"), under which employees performed work beyond their regularly scheduled shifts and assigned tasks while on either "standby" or "on-call." Id . at *3. For "on-call" work, employees were compensated for any time spent providing assistance. Id . For "standby" work, employees were compensated for time spent being immediately available to begin work, as well as acknowledging and responding to a call. Id. Plaintiffs asserted that they should be compensated for all time spent when on-call. Defendant contended that while on-call, employees were able to use their time for their own activities while they were on-call after regular work hours. The Court agreed that Plaintiffs were able to engage in their own activities while on-call such that the time was not compensable. The Court noted that the only requirements while on-call were to not drink alcohol and to be a reasonable distance from the their cell phone, work computer, and the internet such that if assistance was required, the on-call employee could respond in a reasonable amount of time. The Court observed that these were not such substantial restrictions an employees’ life that they were “engaged to wait” during the time or restricted from other personal activities. Id. at *14. The Court further determined that from Plaintiffs’ testimony the calls and required support were minimal. The Court recognized that some calls came at inconvenient times, but it reasoned that the FLSA does not compensate for mere inconvenience alone; instead, the employee must