18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 83 vendor associates. The Court held that this was sufficient to establish commonality between putative class members. The Court reasoned that determination of the employment status of vendor associates would resolve the “issue that is central to the validity” of the claims “in one stroke.” Id . at *62. Defendant also asserted that Plaintiff was not typical of the class because he "specialized in demonstrations of goods," which only accounted for a portion of Defendant’s business. The Court rejected this argument. It opined that the fact that Plaintiff had specialized in one type of vendor experience did not render his claims atypical of the class. The Court also held that Plaintiff and Plaintiff’s counsel were adequate to represent the class. As to the predominance requirement of Rule 23(b), the Court disagreed with Defendant’s argument that there was risk of mini-trials as to each class member. The Court held that the central issue of employee classification predominated over individual issues, all which relied on common evidence of classification as independent contractors under Defendant’s policy. Therefore, the Court ruled that given the common evidence and common issue of employment classification under Defendant’s policies, a class action would be the superior method for adjudicating the action. For these reasons, the Court granted Plaintiff’s motion for class certification of the state law claims. Maldonado, et al. v. Cultural Care, Inc., 2021 U.S. Dist. LEXIS 140985 (D. Mass. July 28, 2021). Plaintiffs, two local childcare consultants (“LCCs”), filed a collective action alleging that Defendant misclassified them as independent contractors and thereby failed to pay them the minimum wage in violation of the FLSA. Plaintiffs filed a motion for conditional certification of a collective action, which the Court denied. Defendant placed foreign au pairs with host families in the United States. Plaintiffs defined the putative collective action as LCCs who were misclassified as independent contractors and not paid the minimum wage during the relevant period of February 19, 2017, through December 31, 2019. Plaintiffs were each engaged as LCCs for approximately five months during the relevant period. LCCs’ monthly compensation included: (i) a flat fee for "monthly servicing activities" of $25 to $82 depending on seniority; (ii) payments for the specific tasks that LCCs performed, such as $75 for conducting interviews of prospective host families, completing check-in calls, or attending in-person orientation meetings; and (iii) commissions for identifying and referring prospective host families. Id. at *4. The Court determined that according to Plaintiffs’ own testimony, even if they were classified as employees, Plaintiffs could not demonstrate that they were paid below the minimum wage for any relevant pay period. The Court noted that there were extreme variations in the amount of time Plaintiffs estimated that they spent on tasks between their deposition testimony and the affidavits they submitted in support of their conditional certification motion. Further, the Court found that Plaintiffs could not explain why their testimony was inconsistent. The Court held that given the unsatisfactory explanation of Plaintiffs’ inconsistent and damaging testimony, it was clear that neither of the named Plaintiffs was qualified to serve as a collective action representative, and accordingly lacked standing to pursue the FLSA minimum wage claims. Id. at *12. For these reasons, the Court denied Plaintiffs’ motion for conditional certification, and it dismissed the action for lack of standing. Mongue, et al. v. Wheatleigh Corp. , 2021 U.S. Dist. LEXIS 186571 (D. Mass. Sept. 29, 2021). Plaintiff, a tipped restaurant employee, filed a class and collective action alleging that Defendant failed to pay minimum wages or overtime compensation, and operated an illegal tip pool in violation of the FLSA and the Massachusetts Fair Minimum Wage Act. Plaintiffs filed a motion for class certification of the state wage & hour claims pursuant to Rule 23. The Court granted the motion. Plaintiffs sought to certify a class of all waitstaff, service members, or service bartenders over the previous three years. First, the Court found that Plaintiff’s proposed class met the numerosity requirement, as it contained 92 members. As to commonality, the Court found that Plaintiff identified several questions that were common to all class members, including whether Defendants provided servers with written notice of tip provisions; whether Defendants paid servers a service rate that was less than minimum wage; whether Defendants took a tip credit; whether Defendants operated a valid tip pool; whether servers were engaged in serving food and beverages; whether tips were distributed by Defendants to any employees with managerial responsibilities; whether tips were distributed to servers in proportion to the service provided; and the form and amount of monetary relief for servers. Id . at *22. The Court held that Plaintiff sufficiently established commonality among the putative class members. Plaintiff contended that she was typical to the rest of the class members because she was a service employee who participated in the tip pool and did not receive notice of the tip pool. The Court concluded that Plaintiff met the typicality requirement because the injuries Plaintiff alleged arose from the course of conduct by Defendants affecting other server/waitstaff employees. Id. at *26. As to the adequacy requirement, Defendants argued that Plaintiff failed to demonstrate that she adequately represented the interested of the proposed class because no other