18th Annual Workplace Class Action Report - 2022 Edition

102 Annual Workplace Class Action Litigation Report: 2022 Edition action of all hourly employees of Defendant. The Court, however, found that Plaintiff met the requisite burden necessary to allow conditional certification of a collective action including all hourly, non-exempt construction workers and construction helpers or laborers employed by Defendants during the statutory period. For these reasons, the Court granted Plaintiffs’ motion for conditional certification of a collective action in part. Ortiz, et al. v. Eskina 214 Corp., 2021 U.S. Dist. LEXIS 211758 (S.D.N.Y. Nov. 2, 2021). Plaintiffs, a group of restaurant employees, filed a collective action alleging that Defendant failed to pay minimum wage and 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 non- exempt employees, (including but not limited to delivery persons, waiters, servers, hosts, bartenders, barbacks, bouncers, porters, runners, bus boys, food preparers, chefs, cooks, and dishwashers). Id . at *2. In support of their motion, Plaintiffs submitted sworn affidavits, payroll statements, and earning statements. The affidavits outlined Defendants’ pay practices and stated that they spoke with other employees of Defendants who were in other non-exempt positions about the wages they were paid and learned that their co-workers also were improperly paid. Id . at *6. The affidavits also directly named co-workers who shared information about their wages, who worked in positions such as food preparer, waitress, server, busser, dishwasher, hookah prep, bartender, and valet parking attendant. Plaintiffs averred that they were paid a fixed rate no matter how many hours they worked, and were sometimes paid late or given paychecks that bounced. Plaintiffs further asserted that they each discussed Defendants’ failure to pay overtime with other employees and learned that such other employees also were not paid overtime. The Court found that Plaintiffs had made the requisite showing necessary to demonstrate that they were similarly-situated to other members of the proposed collective action. The Court also determined that Plaintiffs’ pay records showed that regularly hours were not distinguished from overtime hours from regular hours. For these reasons, the Court granted Plaintiffs’ motion for conditional certification of a collective action. Accordingly, the Court granted in part Plaintiffs’ motion for conditional certification of a collective action. Pena, et al. v. SP Plus Corp., 2021 U.S. Dist. LEXIS 99792 (S.D.N.Y. May 29, 2021). Plaintiff, a parking attendant, filed a collective and class action alleging that Defendant’s time-rounding policy led to it not paying for all time worked and that he was not paid for lunch breaks even when he was required to work through them in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court granted in part. Plaintiff sought conditional certification of a collective action consisting of all parking attendants nationwide over the previous six years. In support of his motion, Plaintiff offered his own declaration in which he described the impact of the policy and named several other parking attendants he worked with who he asserted were also subject to the policy. Plaintiff also provided the declaration of an opt-in Plaintiff that substantiated his claims. The Court found that Plaintiff’s evidence was not sufficient to warrant granting conditional certification to a nationwide collective action consisting of thousands of employees with differing job descriptions employed at hundreds of worksites. Id . at *14. The Court reasoned that Plaintiff failed to provide any evidence regarding Defendant’s facilities other than the facilities in New York City. The Court opined that Plaintiff’s declarations sufficiently established that they and other parking attendants held the same position, performed the same duties, were subject to the same rounding and time-shaving policies, and, as a result, were underpaid. Id . at *15-16. The declarations averred that Defendant’s timekeeping system improperly rounded their hours down, and that they were required to work during their meal breaks. The Court also noted that Plaintiff specifically named other attendants who worked throughout New York City, who similarly had their hours rounded and were required to work during their meal breaks. The Court thus concluded that Plaintiff made the requisite showing necessary to demonstrate that he was similarly-situated to other parting attendants who worked at Defendant’s parking facilities in New York City for purposes of conditional certification. For these reasons, the Court granted in part Plaintiff’s motion for conditional certification of a collective action. Pino, et al. v. Harris Water Main & Sewer Contractors Inc., 2021 U.S. Dist. LEXIS 157072 (E.D.N.Y. Aug. 19, 2021). Plaintiffs, a group of non-exempt manual laborers, brought a class and collective action on behalf of themselves and others similarly-situated alleging violations of the FLSA, and the New York Labor Law ("NYLL") as well as N.Y. Comp. Codes R. & Regs. ("NYCCRR"). The Court previously had conditionally certified a collective action under the FLSA. Plaintiffs subsequently moved to certify a class pursuant to Rule 23(b)(3) with respect to Plaintiffs’ NYLL and NYCCRR claims. The Court granted in part and denied in part Plaintiffs’