18th Annual Workplace Class Action Report - 2022 Edition

110 Annual Workplace Class Action Litigation Report: 2022 Edition Defendant unlawfully denied them overtime compensation due to Defendant’s policy and practice of: (i) automatically deducting 30 minutes from pay even when employees worked through their breaks; (ii) failing to accurately track and compensate Plaintiffs for all time spent performing compensable work; (iii) failing to compensate Plaintiffs for all hours performing compensable work; and (iv) failing to compensate Plaintiffs overtime compensation at 1.5 times their regular rate of pay for hours worked in excess 40 in a workweek. Id . at *11. Defendant contended that conditional certification was not appropriate because despite undergoing some discovery, Plaintiffs failed to provide sufficient evidence to suggest that other similarly-situated putative collective action members were not compensated for time they worked on meal breaks. The Court found that Plaintiffs had met their burden for conditional certification under 29 U.S.C. § 216(b). The Court determined that Plaintiffs’ declarations provided sufficient details alleging that they and others similarly-situated worked through meal and rest breaks without compensation due to Defendant’s automatic deduction policy. For these reasons, the Court granted Plaintiffs’ motion for conditional certification of a collective action. Henkel, et al. v. Highgate Hotels, LP, 2021 U.S. Dist. LEXIS 104114 (W.D. Penn. June 4, 2021). Plaintiff, a hotel employee, filed a class and collective action alleging that Defendant failed to pay gratuities from guests and failed to pay overtime compensation in violation of the FLSA and the Pennsylvania Minimum Wage Act (“PMWA”). Plaintiff also alleged a claim for unjust enrichment. Plaintiff filed a motion for class certification of the state law claims pursuant to Rule 23, and for conditional certification of collective action of the FLSA claims. The Court granted the motion for class certification, and denied the motion for conditional certification of a collective action. Plaintiff sought to certify classes consisting of servers and housekeepers and to conditionally certify a collective action of both servers and housekeepers. As to the class certification motion, the Court found that Plaintiff met all the requirements of Rule 23. However, Defendants argued that named Plaintiff should not be entitled to conditional certification because she was not similarly-situated to the proposed collective action members. Plaintiff asserted that all proposed collective action members "held the same positions, were compensated by the same method, and sustained the same type of economic loss." Id . at *36. Plaintiff further asserted that Defendants maintained a "general practice or policy" of requiring servers to work off-the-clock without pay. Id . The Court agreed with Defendants. The Court opined that the record demonstrated that Plaintiff was employed "primarily, if not exclusively," as a café attendant, and that her work in other departments was "aberrational" to fill gaps as needed. Id . at *37-38. The Court explained that the testimony established that the café attendant position was separate and distinct from the server position, which was classified under a different department. Further, the Court reasoned that it unclear from the record and the testimony that Plaintiff ever worked over 40 hours per week for Defendants, which was a basic prerequisite for overtime eligibility under the FLSA. In contrast, the opt-in Plaintiffs were primarily servers who were paid on a per head basis, rather than an hourly wage. The Court concluded that because of the differences between Plaintiff and the opt-in Plaintiffs, proceeding as a collective action would not provide judicial economy. The Court thereby denied Plaintiff’s motion for conditional certification of a collective action. In Re Wawa Data Security Litigation, 2021 U.S. Dist. LEXIS 97591 (E.D. Penn. May 24, 2021). Hackers took Defendant’s customer payment card information, accessed its point-of-sale systems, and installed malware that made information available for purchase on the "dark web." Id. at *3. This class action litigation followed Defendant’s disclosure of the data breach and consisted of three distinct tracks for the class action litigation, including: (i) the Consumer Track, (ii) the Employee Track, and (iii) the Financial Institution Track. The Employee Plaintiffs included in their allegations a claim for overtime violations of the FLSA. The Court dismissed the overtime claims as time-barred. Plaintiff McGlade subsequently filed a motion for conditional certification of a collective action, which the Court denied. McGlade sought conditional certification of a collective action consisting of all assistant general managers who were employed in the United States for three years from January 10, 2017 until January 10, 2020. The Court determined the Plaintiff McGlade was the sole named Plaintiff who asserted an off-the-clock overtime claim against Defendant, and the Court previously had dismissed the overtime claims as time-barred. The Court ruled that since McGlade no longer had a personal interest in representing any potential opt-in Plaintiffs, and no other appropriate representative Plaintiffs were currently named as parties to the Employee Track, the motion for conditional certification must be denied as moot. The Court further determined that even if the motion would not be denied as moot, the Court would deny the motion for conditional certification because McGlade failed to make the requisite factual showing necessary. The Court opined that nothing in the record sufficiently demonstrated that Defendant maintained a policy that