18th Annual Workplace Class Action Report - 2022 Edition

282 Annual Workplace Class Action Litigation Report: 2022 Edition Clark, et al. v. Southwestern Energy, 2021 U.S. Dist. LEXIS 33103 (E.D. Ark. Feb. 23, 2021) . Plaintiff, a gas pumper, filed a collective action alleging that Defendant misclassified pumpers as exempt employees and thereby failed to pay them overtime compensation in violation of the FLSA. Defendants filed a motion to dismiss, which the Court denied. Defendants argued that Plaintiff’s action should be dismissed because he failed to plead willful conduct. The Court previously had concluded that Plaintiff sufficiently alleged a willful violation of the FLSA where “Plaintiff alleged that his employer changed his classification from hourly to salaried without any material change in his duties and with reckless disregard to the consequences or knowledge that the change was unlawful and where the Plaintiff alleged that the employer violated the FLSA’s recordkeeping provisions.” Id . at *9. Here, Plaintiff alleged that: (i) Plaintiff and others were not compensated for certain allegedly compensable activities such as vehicle safety inspections and paperwork; (ii) Defendants expressly directed Plaintiff and similarly-situated employees not to clock-in while performing safety checks and driving to their first location or while completing paperwork at the end of the day; (iii) Defendants had knowledge of the hours worked; and (iv) Defendants knew or showed reckless disregard for whether their actions violated the FLSA. Id. at *11. The Court found that Plaintiff thereby sufficiently alleged willfulness under the FLSA. Defendant Flywheel also moved to dismiss on the basis that Plaintiff failed to allege facts sufficient to establish successor liability, as it only acquired the operation of the company in December of 2018. Id . at *16-17. However, the Court ruled that Plaintiff sufficiently alleged that Flywheel acquired Southwestern in December 2018; that Flywheel had the same business model, employees, managers or supervisors, equipment and facilities, and provided the same services to the same clients; that Southwestern informed Flywheel of its practice of not paying employees in accordance with the FLSA; and that Flywheel continued the same pay practices as Southwestern. Id . at *17. At this stage of the litigation, the Court concluded that Plaintiff adequately alleged successor liability. Finally, Defendants argued that Plaintiff could not support a collective action because he was not similarly-situated to Southwestern and Flywheel employees. The Court concluded that Plaintiff had not yet moved for conditional certification of the proposed collective action, and thus it rejected Defendants’ arguments as premature. For these reasons, the Court denied Defendants’ motion to dismiss. Guy, et al. v. Absopure Water Co. , 2021 U.S. Dist. LEXIS 34894 (E.D. Mich. Feb. 25, 2021). Plaintiff, a truck driver, filed a collective action alleging that Defendant, a bottled water company, failed to pay overtime compensation in violation of the FLSA. Defendant filed a motion to dismiss, arguing that it was a private motor carrier and thus Plaintiff was exempt from coverage under the FLSA pursuant to the Motor Carrier Act ("MCA") exemption. Plaintiff argued that dismissal should be denied because: (i) the motion was premature, since Defendant had the burden of proving the affirmative defense of Plaintiff’s status as an exempt employee; (ii) Defendant’s use of "alternative facts" not plead in the complaint could not serve as the predicate for a Rule 12(b)(6) dismissal; and (iii) Defendant could not establish the applicability of the MCA exemption as a matter of law. Id . at *3-4. The Court opined that typically, a motion to dismiss under Rule 12(b)(6) was not the appropriate vehicle to dismiss a claim based on an affirmative defense. Id . at *6. However, it recognized that if a complaint "shows on its face that relief is barred by an affirmative defense," dismissal under Rule 12(b)(6) would be appropriate. Id . at *6-7. The Court noted that Plaintiff’s complaint did not explicitly address the applicability of the MCA exemption, and accordingly, it was premature for the Court to decide the applicability of the MCA exemption. Further, the Court reasoned that it generally may not consider any facts outside the complaint on a Rule 12(b)(6) motion to dismiss, and thus the Court could only dismiss Plaintiff’s complaint as barred by the MCA exemption based on the face of the complaint, not facts outside the complaint. Since the additional facts of the case were submitted by Defendant and were not alleged in the complaint, the Court concluded that the motion must be denied. Heras, et al. v. Metropolitan Learning Institute, 2021 U.S. Dist. LEXIS 3434 (E.D.N.Y. Jan. 7, 2021). Plaintiff filed a class action alleging violations of the FLSA and the New York Labor Law (“NYLL”). Defendant filed a motion to dismiss, which the Court denied. Plaintiff was employed by Defendant, a private instructional facility, as a recruiter from August 2018 through April 2019, and was responsible for recruiting potential students to enroll. Plaintiff contended that she regularly worked more than 40 hours per week, without receiving overtime compensation, and often without receiving a meal break during her 9:00 a.m. to 6:00 p.m. shifts. Plaintiff further asserted that she never was provided wage statements or wage notices. Defendant asserted that Plaintiff’s employment fell without the "outside sales" exemption of the FLSA. An "outside salesman" is an employee who "customarily and regularly" works away from the employer’s business and whose "primary job duty" is to make