18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 103 motion for Rule 23(b)(3) certification. Defendants did not oppose class certification with respect to Plaintiffs’ NYLL claims alleging Defendants’ failure to pay certain wages, overtime, and for work performed during unpaid lunch hours. The Court granted Plaintiffs’ motion for certification as to these claims. Defendants, however, opposed class certification with respect to Plaintiffs’ claims alleging Defendants’ failure to comply with the notice requirements of the New York Wage Theft Prevention Act ("WTPA") and failure to reimburse employees for the cost and maintenance of uniforms. Specifically, Defendants contested whether the commonality and typicality requirements of Rule 23(a) and the predominance and superiority requirements of Rule 23(b)(3) were met with respect to the claims under the WTPA and for failure to reimburse employees for the cost and maintenance of uniforms claims. The Court certified a class as to the WTPA clams, but declined to do so as to the claim that Defendant failed to reimburse employees for the cost and maintenance of uniforms claims. As to numerosity, the Court concluded that this requirement was easily met because Defendants’ records indicated that there were potentially 112 current and former non-exempt crew members. With respect to commonality, Defendants asserted that Plaintiffs’ WTPA claim did not meet the commonality requirement because Plaintiffs failed to show that Defendants implemented a common policy or scheme and that the vast majority of wage notices overwhelmingly included all information required by law. In opposition to Plaintiffs’ motion for class certification, Defendants produced 97 purportedly compliant wage notices. The Court conducted a brief review of those wage forms and found that some forms were not fully compliant and were incomplete. As such, the Court found that commonality was met with respect to the WTPA wage notice claim because common question existed as to whether class members received accurate pay rate notices and wage statements. As to the uniform reimbursement claim, Plaintiffs asserted that commonality was satisfied because class members were required to purchase and wear clothing bearing Defendants’ logo and were not reimbursed for the purchasing or laundering of such uniforms. However, because there was conflicting testimony as to whether Plaintiffs were actually required to purchase uniforms and were not reimbursed, the Court found that commonality was not met. For reasons similar to its finding as to commonality, the Court held that the typicality requirement was met as to the WTPA claim but not as to the uniform maintenance claim. As to adequacy, the Court concluded that class counsel was qualified, experienced, and generally able to conduct the litigation and that there was no conflict of interest between the named Plaintiffs and other members of Plaintiffs’ class. Finally, as to Rule 23(b)(3)’s requirements, the Court found that the predominance requirement was satisfied as to the WTPA claim, but not as to the uniform maintenance claim. Relative to superiority, the Court ruled that a class action was the superior method of proceeding because class members would be less likely to pursue their claims individually. For these reasons, the Court granted Plaintiffs’ Rule 23(b)(3) motion for certification as to the NYLL claims alleging Defendants’ failure to pay overtime and for work performed during unpaid lunch hours as well the WTPA claims. However, the Court denied certification as to Plaintiffs’ claim for the failure to reimburse employees for the cost and maintenance of uniforms. Porter, et al. v. MooreGroup Corp., 2021 U.S. Dist. LEXIS 151187 (E.D.N.Y. Aug. 11, 2021). Plaintiffs brought an action alleging various wage & hour violations under the FLSA and the New York Labor Law ("NYLL"). The Court previously had granted Plaintiffs’ motion to certify a collective action pursuant to the FLSA. The collective action limited the group of potential Plaintiffs to fire guards, welders, laborers, and other construction employees who worked for Defendants. Plaintiffs thereafter filed a motion for class certification of Plaintiffs’ NYLL claims pursuant 23(b)(3), on behalf of a class fire guards, welders, carpenters, laborers and other construction employees who worked for Defendants. The Court granted Plaintiffs’ motion to certify a class action for the NYLL claims. As a threshold matter, the Court agreed with Defendants that the potential class was overbroad and therefore the Court should exercise its discretion to modify the class to include only those who performed manual construction labor. As to numerosity, the Court concluded that there were sufficiently numerous potential class members to make joinder impractical. With respect to Rule 23(a)’s commonality requirement, the Court found that there were questions of law or fact common to the class, since Plaintiffs alleged that they were subject to the same unlawful scheduling and timekeeping practices. Plaintiffs identified three factual questions common to the class, including whether Defendants: (i) had a policy of not paying wages at an overtime rate after an employee worked over 40 hours in a given workweek; (ii) had a policy of failing to provide wage statements with payment of wages to employees; and (iii) had a policy of failing to provide wage notices at hiring, annually, and with each change in hourly rates. For similar reasons, the Court concluded that the typicality requirement was satisfied because the named Plaintiffs’ claims arose from the same course of conduct and under the same legal theory as the rest of the class. Likewise, the Court ruled that adequacy was