18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 287 common factual predicate concerning the alleged failure to pay for all hours worked. Accordingly, the Court granted Defendant’s motion to dismiss. Hassell, et al. v. Uber Technologies, 2021 U.S. Dist. LEXIS 115373 (N.D. Cal. June 21, 2021). Plaintiff, a rideshare driver, brought a putative wage & hour class action alleging several claims pursuant to California Labor Code (“CLC”). Plaintiff further alleged that Defendant had misclassified Plaintiff as an independent contractor. Defendant moved to dismiss Plaintiff’s complaint pursuant to Rule 12(b)(6), and to strike certain class allegations. The Court granted Defendant’s motion in part and denied it in part. Defendant asserted that Plaintiff’s claims failed for two independent reasons. First, Defendant asserted that Proposition 22, a ballot initiative approved by California voters in the November 2020 election, abated all claims alleged in Plaintiff’s complaint. Defendant asserted that § 7451 of the law effectively repealed the ABC test on independent contractor status as to delivery people. The Court ruled that it was unable to conclusively determine whether or not § 7451 abated Plaintiff’s claims. In so ruling, the Court found that Defendant failed to justify its assertion that Plaintiff must affirmatively allege Defendant’s non-compliance with any of § 7451’s four conditions when claiming that he qualified as an employee under the CLC. Additionally, the Court concluded that Defendant failed to show that the wage orders forming the basis of the California Supreme Court’s decision in Dynamex Operations West v. Superior Court, 4 Cal. 5th 903 (2018), did not represent a codification of pre-wage order California common law principles for purposes of determining a worker’s employment classification. Specifically, the Court pointed out that the text of § 7451 stated that an app-based driver was an independent contractor if the four conditions were met, but did not address whether the app-based driver or the company bore the burden of showing that the four conditions were or were not satisfied. Accordingly, the Court denied Defendant’s motion to the extent that it was premised on abatement. As to the sufficiency of Plaintiff’s allegations, the Court noted that Plaintiff had alleged sufficient facts to support the claims alleging: (i) failure to pay minimum wages; (ii) failure to pay overtime wages; (iii) failure to provide accurate wage statements; and (iv) failure to pay business expenses. Specifically, the Court held that Plaintiff could base an overtime claim on the time that he spent actively engaged in deliveries, i.e. , picking up and dropping off food, as well as the time that he spent on the Uber Eats App waiting for requests between deliveries. However, the Court dismissed Plaintiff’s claims based upon § 17200 in its entirety. Finally, Defendant requested that the Court strike Plaintiff’s class action allegations to the extent the putative class included persons bound to arbitrate their claims. Defendant asserted that only a small number of putative class members both opted-out of arbitration and were not covered by prior releases while hundreds of thousands of the putative class members were bound to arbitrate their claims on an individual basis. The Court found that at this juncture the record was insufficiently developed to entertain the propriety of the requested relief and suggested that it would be more properly brought at the summary judgment stage. In sum, the Court granted in part and denied in part Defendant’s motion to dismiss pursuant to Rule 12(b)(6). In Re Lowe ’ s Companies, Inc. Fair Labor Standards Order Act And Wage & Hour Litigation, 2021 U.S. Dist. LEXIS 20296 (W.D.N.C. Feb. 3, 2021). In this multi-district litigation (“MDL”), Plaintiffs, a group of non- exempt hourly managers, asserted claims under the FLSA and the wage & hour laws of 20 different states where some 2,000 of Defendant’s home improvement and hardware stores operated. Plaintiffs alleged that Defendant made them perform unpaid work off-the-clock, which resulted in unpaid regular and overtime wages. Plaintiffs brought claims on behalf of putative statewide Rule 23 classes under wage & hour laws in 20 states, including Arizona, Arkansas, Colorado, Connecticut, Illinois, Kentucky, Maryland, Massachusetts, Minnesota, Missouri, Nevada, New Jersey, New Mexico, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Washington, and West Virginia. Defendant moved to dismiss the majority of Plaintiffs’ state law claims pursuant to Rule 12(b)(6) and to compel arbitration. As its first and primary argument, Defendant asked the Court to dismiss Plaintiffs’ claims seeking overtime pay under the state wage laws on the ground that those state law claims were preempted by the FLSA. Specifically, Defendant argued that the following state law overtime claims were preempted: (i) those under state statutes that provide the same substantive right to time-and-a-half for hours worked over 40 in a workweek as the FLSA; and (ii) those under state payday statutes premised on preempted substantive state law overtime claims. Defendant did not contend that the FLSA preempted Plaintiffs’ contractual “gap-time” claims or statutory payday claims based on an alleged contractual entitlement to overtime. Plaintiffs argued that the FLSA only sets a "floor" that prohibited states from enacting state wage laws setting requirements lower than the FLSA requirements, but does not preempt parallel state statutory schemes that give employees higher levels of recovery, longer statutes of limitations, or provide remedies different from