18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 73 flight attendants on the basis of their age in violation of the Age Discrimination in Employment Act (“ADEA”). Plaintiffs filed a motion for conditional certification of a collective action, which the Court granted. Plaintiffs contended that Defendant offered less valuable consideration to its older flight attendants than to its remaining flight attendants in exchange for the older flight attendants’ agreement to retire early. Id. at *2. Defendant offered a Voluntary Early Out Program ("VEOP") to its older flight attendants as consideration in exchange for their agreement to early retirement "to motivate people who really were close to retiring" to retire. Id. The March 2020 offer required flight attendants have at least 10 years of seniority, and only flight attendants older than 40 were eligible due to Defendant’s prior hiring freeze and minimum hiring age requirement. Id. at *3. Plaintiffs alleged that Defendant pressured its older flight attendants to accept the March 2020 offer through various means such as denying leaves of absence, restricting mask usage on airplanes during the pandemic, and misinforming them that there would be no subsequent early retirement offers. Id. Plaintiffs sought conditional certification of a collective action consisting of "all current and former flight attendants who accepted Defendant’s voluntary early retirement program ("VEOP") offer first extended in March 2020." Id. at *5. In support of their motion, Plaintiffs offered the declaration of one named Plaintiff and documents that Defendant sent her and other flight attendants regarding the March VEOP. Defendant did not contest conditional certification. After its independent review and analysis of Plaintiffs’ motion, the Court found that at this stage of the litigation, Plaintiffs’ complaint and their supporting evidence were sufficient to demonstrate that Plaintiffs and the proposed collective action members were similarly-situated and all subject to the same allegedly illegal policy. For these reasons, the Court granted Plaintiffs’ motion for conditional certification of a collective action. (x) Tenth Circuit Pogue, et al. v. Chisholm Energy Operating, 2021 U.S. Dist. LEXIS 237107 (D. N.Mex. Dec. 10, 2021). Plaintiff, a drilling consultant at an oilfield, filed a collective action alleging that Defendant misclassified all oilfield workers as independent contractors and thereby failed to pay them overtime compensation in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court granted in part. Plaintiff alleged that all oilfield workers were paid a day-rate and sought conditional certification of a collective action consisting of all oilfield workers employed by or performing work on behalf of Defendant who were classified as independent contractors and paid a day-rate without overtime during the past three years. Id . at *7. Plaintiff contended that all oil field workers were similarly-situated because they: (i) received a flat day rate for each day worked, regardless of the hours worked; (ii) were all required or permitted to work overtime without receiving compensation at the legal rate of pay; (iii) were all staffed to work for Defendant; (iv) were all employees of Defendant and misclassified as independent contractors; (v) were never guaranteed a salary; and (vi) all performed work for Defendant in the oilfield. Id . at *8. Defendant argued that Plaintiff could not show that he was similarly-situated to the members of the proposed collective action. In support of his motion, Plaintiff provided a declaration that outlined his job duties, including “observing completions operations, managing coil tubing operations, ensuring that the team is following safety protocol, completing paperwork, and ordering oilfield supplies." Id . at *10. Plaintiff further explained that his "primary job duties included observing drilling operations on the rig and ensuring that the team is following safety protocol." Id . at *11. Plaintiff also provided the declaration of another worker, whose title was “completions consultant,” who averred that he performed almost exactly the same duties. The Court found that by the allegations in the complaint and the declarations submitted by Plaintiff, oilfield workers employed as "completions consultants" or "drilling consultants" performed similar or comparable job duties or responsibilities sufficient for purposes of conditional certification. Id . However, the Court agreed with Defendant that Plaintiff failed to provide support for a proposed collective action made up of "all oilfield workers." Id . at *12. The Court ruled that Plaintiff failed to provided sufficient factual support to conclude that a collective action of "all oilfield workers" or the "day-rate workers" included individuals with similar positions. Id . The Court noted that Plaintiff submitted sufficient evidence in the form of pay invoices to support his claims that Defendant subjected the workers to the same policy of providing a day-rate to workers and not paying overtime compensation. The Court determined that Plaintiff made specific allegations regarding Defendant’s conduct and practices based on his personal experience, knowledge, and interactions with others, and provided supporting evidence through declarations and pay invoices. For these reasons, the Court granted Plaintiff’s motion for conditional certification of a collective action in part. Wood, et al. v. Learjet , 2021 U.S. Dist. LEXIS 107786 (D. Kan. June 9, 2021). Plaintiffs, two former aerospace engineers, filed a collective action alleging that Defendants had engaged in a pattern or practice of age