18th Annual Workplace Class Action Report - 2022 Edition

100 Annual Workplace Class Action Litigation Report: 2022 Edition a scheduled or uninterrupted meal break, for a total of 65 hours per week. Id . at *3. Plaintiff on occasion received additional compensation that ranged from $5.00 to $45.00 per day, regardless of the amount of hours that Plaintiff worked in a day or in a week. In support of his motion, Plaintiff offered his own declaration in which he attested that that he was employed by Defendant as a delivery driver from December 2017 to July 15, 2018, during which he was paid a flat compensation of $130.00 per day, regardless of the number of hours worked, and that, for some days, he received no compensation at all. Id . at *5. Plaintiff further stated that he regularly worked 65 hours per week without being paid overtime compensation and that other delivery drivers were subject to the same compensation policy. Defendant opposed the motion on the basis that Plaintiff was not similarly-situated to other drivers as a result of the arbitration agreements that all of Defendant’s employees signed. In support of its position, Defendant offered the declaration of its Corporate Controller and certain documentary evidence. Plaintiff argued that the arbitration agreements did not preclude conditional certification because that argument went to the merits of the claims, which was not appropriate to consider at the conditional certification stage. The Court reasoned that there was no dispute that the putative Plaintiffs were subject to binding arbitration agreements. Accordingly, the Court found that the proposed collective action members could not be similarly-situated to named Plaintiff, as any wage & hour claims they may have must be arbitrated on an individual basis. Id. at *16. The Court concluded that proceeding as a collective action would delay adjudication of the claim of Plaintiff, who was the only one who could bring his claims outside of arbitration. Accordingly, the Court denied Plaintiff’s motion for conditional certification of a collective action. Mercado, et al. v. Metropolitan Transportation Authority, 2021 U.S. Dist. LEXIS 118158 (S.D.N.Y. June 24, 2021). Plaintiffs, a group of bridge and tunnel officers, filed a collective action alleging that Defendant failed to pay overtime compensation in violation of the FLSA. Plaintiffs filed a motion for conditional certification of a collective action, which the Court granted. Plaintiffs sought conditional certification of a collective action consisting of all similarly -situated bridge and tunnel officers. Plaintiffs asserted that Defendant: (i) required them to perform unpaid off-the-clock work; (ii) systematically shaved their work time; (iii) miscalculated their overtime rates; and (iv) delayed the payment of their compensation. In support of their motion, Plaintiffs offered their own declarations in which they asserted that they and other bridge and tunnel officers were “similarly-situated, had substantially similar job requirements, [and] were paid in the same manner." Id . at *3. Plaintiffs further asserted that all bridge and tunnel officers were subjected to the same policies, practices, and programs that deprived them of their proper overtime pay. The Court held that the nine declarations alleging substantially similar claims against Defendant were sufficient to meet the modest burden required at the conditional certification stage. Each declarant alleged a failure to compensate for pre-shift and post-shift work, an illegal rounding policy, delays of four to six weeks for payment of overtime pay, and inaccurate overtime rate calculations. Accordingly, because it concluded that Plaintiffs had made the requisite factual showings under 29 U.S.C. § 216(b), the Court granted Plaintiffs’ motion for conditional certification of a collective action. Mikiyuk, et al. v. Cision US Inc., 2021 U.S. Dist. LEXIS 85317 (S.D.N.Y. May 4, 2021). Plaintiffs, a group of sales representatives (“SRs”), filed a collective action alleging that Defendant misclassified them as exempt employees and thereby failed to pay them overtime compensation in violation of the FLSA. Plaintiffs filed a motion for conditional certification of a collective action, which the Court granted. In support of their motion, Plaintiffs submitted 22 substantially similar declarations from SRs in the New York, Chicago, and Beltsville, Maryland offices. The declarants all averred that their primary duty was sales-related work performed via phone, email, and videoconference. The declarants asserted that it was difficult to meet Defendant’s Key Performance Indicators ("KPIs") without working substantially more than 40 hours per week, and that any hours worked over 40 per workweek were not compensated. The declarants also asserted that all SRs worked the same types of hours and were subject to the same KPIs. Plaintiffs further contended that Defendant failed to keep accurate records of all the hours that Plaintiffs and other SRs worked and followed a "corporate policy or practice of minimizing labor costs by violating the FLSA and state wage & hour laws." Id. at *3. Defendant argued that even if the Court granted conditional certification, the parameters of the proposed collective action should be limited to SRs in the New York, Chicago, and Beltsville offices, and not be approved for a nationwide collective action. The Court rejected Defendant’s arguments. It found that Plaintiffs made the requisite showing necessary to conditionally certify a nationwide collective action. The Court noted that Defendant’ alleged violations stemmed from a nationwide practice that put pressure on both managers and non-exempt employees to under-report or not report overtime hours. Id . at *18-19. Further, the Court reasoned that there was no evidence that the three