18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 125 servers were required to deduct a fixed percentage of their tips for paying bussers and food runners, but some shifts might not have those employees working. Defendant argued that Plaintiffs’ declarations were not based on personal knowledge and there was insufficient evidence of a policy. Id . at *8. The Court agreed with Defendant. The Court held that the declarations only stated awareness of the tip pool distributions by "conversations with other co-workers" who were not working during the particular shift. The Court reasoned that declarations submitted by employees must be based on personal knowledge. Id . at *9. Plaintiffs also contended that servers were required to purchase uniforms and other business-related items and equipment and were not reimbursed for these expenses. In support of their allegation, Plaintiffs submitted copies of 13 paystubs from 11 servers, of which four indicated a "uniform" deduction. Id . at *10. The Court found that this evidence was insufficient to show that the uniform deductions were part of a mandatory policy, and rather, would result in a highly individualized inquiry into each server’s circumstances. Finally, Plaintiffs contended that Defendant enforced a policy or practice of paying servers below minimum wage for the time they were required to spend on non-tipped work, including wiping down tables, stocking and setting tables, running food, and rolling silverware. Id . at *11. Plaintiffs supported their allegations with declarations and “server shift” checklists all of which listed the same duties. Id . The Court found that Plaintiffs failed to meet their requisite burden, as the checklists demonstrated that different tasks would be required by different servers during a particular shift, thereby leading to individual inquiries. For these reasons, the Court denied Plaintiffs’ motion for conditional certification of a collective action. Hernandez, et al. v. Pritchard Industries (Southwest), LLC, 2021 U.S. Dist. LEXIS 56675 (W.D. Tex. March 25, 2021). Plaintiffs, a group of janitorial employees, 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 janitorial workers who Plaintiffs alleged were not paid overtime for hours worked over 40 hours per workweek. Defendant argued that conditional certification was not appropriate because individualized inquiries would be needed to be made to determine: (i) whether a janitor worked more than 40 hours per week. (ii) whether a payroll code was properly applied to that employee’s wages for that week, and (iii) whether a payroll code error resulted in the janitor receiving more overtime pay than required. Id . at *5. The Court rejected Defendant’s arguments. It found that there was a common issue amongst all the janitor employees, i.e., if there was a payroll code properly applied to their weekly paycheck that provided that they were paid 1.5 times their regular rate of pay for hours worked in excess of 40 hours per workweek. The Court determined that Plaintiffs were similarly-situated to the members of the proposed collective action. The Court reasoned that the fact that Defendant would have to review its records to determine whether each janitor was properly paid in order to identify collective action members did not change the fact that they were all subject to Defendant’s common policy or plan and thus similarly-situated for purposes of conditional certification. For these reasons, the Court granted Plaintiffs’ motion for conditional certification of a collective action. Lopez-Gonzales, et al. v. Ramos, 2021 U.S. Dist. LEXIS 140943 (S.D. Tex. July 28, 2021). Plaintiffs, a group of restaurant servers, filed a collective action alleging that Defendants failed to pay minimum wages in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court granted in part and denied in part. Plaintiffs sought conditional certification of a collective action consisting of "all individuals who worked as a server at any of Defendants’ restaurants located in Texas" Id . at *11. Plaintiffs asserted that they and potential opt-in Plaintiffs were similarly-situated regarding work duties and pay policies. In support of their motion, Plaintiffs, who all worked at Defendants’ Pampa, Texas location, offered their own declarations asserting that they had similar duties and were all subject to Defendant’s tip credit policy. Plaintiffs further averred that they were aware that all servers were subject to the same policy. The Court determined that Plaintiffs failed to offer persuasive evidence that the servers at any other restaurant beyond the one at which they worked were similarly-situated. The Court reasoned that Plaintiffs’ conclusory allegations regarding servers at other restaurants were insufficient to establish that those servers were similarly-situated to Plaintiffs. The Court noted that Plaintiffs failed to offer a single declaration or opt-in consent from a server from a location other than Pampa, nor did they present evidence that they had even corresponded with employees at other locations. The Court concluded that Plaintiffs’ submitted declarations contained sufficient evidence regarding the conditions at the Pampa location, and thus it granted conditional certification to servers who worked at the Pampa restaurant location only.