18th Annual Workplace Class Action Report - 2022 Edition

130 Annual Workplace Class Action Litigation Report: 2022 Edition of Work Projects at the direction of Pathfinder-RTC. Id . at 698. For these reasons, the Court granted Plaintiffs’ motion for conditional certification of a collective action. Torres, et al. v. Chambers Protective Services, 2021 U.S. Dist. LEXIS 27839 (N.D. Tex. Aug. 5, 2021). Plaintiff, an hourly gate guard, filed a collective action alleging that Defendant failed to pay overtime compensation in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, and the Court granted the motion. Plaintiff sought conditional certification of a collective action of all hourly gate guards and a collective action of all supervisors. In support of her motion, Plaintiff offered her own declaration in which she outlined the job duties and pay policies for all members of the proposed collective actions. Plaintiff asserted that all gate guards, regardless of whether they were supervisors, had similar job duties of serving as a gate guard and checking for trespassers at gated facilities; all were paid hourly; all regularly worked over 40 hours in a workweek; and all were not paid overtime compensation. The Court held that Plaintiff sufficiently established that all gate guards were subject to similar factual and employment settings with respect to the issue of whether Defendant failed to pay overtime compensation to support a collective action on that basis. The Court also noted that allowing the putative collective action members to sue collectively would lower their costs to pursue any claims against Defendant and allow the Court to efficiently resolve common issues of law and fact pertaining to the proposed collective action members of gate guards in one proceeding. Id . at *29-30. For these reasons, the Court granted Plaintiff’s motion for conditional certification of a collective action. Verrett, et al. v. Pelican Waste & Debris, LLC, 2021 U.S. Dist. LEXIS 52012 (E.D. La. March 19, 2021). Plaintiff, a waste disposal driver, filed a collective action alleging that Defendant’s automatic deduction policy that subtracted 30 minutes per workday from an employee’s on-the-clock time for a lunch break caused violations of the overtime compensation requirement of the FLSA. Plaintiff filed a motion for conditional certification of a collective action. The Court denied the motion. Plaintiff asserted that Defendant’s policy automatically deducted time for a lunch breach when drivers regularly skipped lunch or ate while working due to time constraints. Plaintiff sought conditional certification of a collective action consisting of waste disposal drivers nationwide. In support of his motion, Plaintiff submitted several affidavits that stated that drivers were subject to Defendant’s auto-deduct policy. Defendant argued that Plaintiff failed to allege any actionable FLSA violations because the declarants all worked in different locations under different managers who gave different instructions with regard to missed meal breaks. Defendant contended that employees were responsible for accurately tracking hours worked, including overtime, on their timecards and were instructed to notify supervisors to correct deductions for missed meal breaks. The Court found that the individualized nature of the facts alleged and the absence of an actionable FLSA violation made the action unsuitable for collective treatment. The Court held that Plaintiff’s complaint and affidavits did not establish that the named Plaintiffs and putative collective action members were victims of a single decision, policy, or plan. Id . at *5. The Court reasoned that Plaintiff did not allege that supervisors prevented or denied employees the opportunity to claim overtime by correcting their timesheets. The Court determined that the allegation that employees were subjected to auto-deductions, without more, did not show a violation of the FLSA. For these reasons, the Court denied Plaintiffs’ motion for conditional certification of a collective action. Williams, et al. v. D ’ Argent Franchising, 2021 U.S. Dist. LEXIS 212030 (W.D. La. Nov. 2, 2021). Plaintiffs, two workers, 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 denied as premature. The Court explained that the Fifth Circuit recently established a new standard for certification of collective actions in Swales v. KLLM Transport Services, LLC, 985 F.3d 430 (5th Cir. 2021), which rejected a two-step certification process on the basis that it was not anchored in the text of the FLSA or U.S. Supreme Court case law precedent. Id . at *6. Swales held that consideration of a motion for conditional certification required that the issue of whether workers were similarly-situated must be "rigorously” scrutinized at the start of a case, and not after a lenient, step-one “conditional certification” procedure. The Court opined that it must identify, at the outset of litigation, the facts and legal considerations material to a determination of whether workers were similarly- situated for purposes of answering merits questions collectively; (iii) authorize preliminary discovery necessary to make the similarly-situated determination; and (iv) determine, based on all available evidence, whether and to whom the opt-in notice should be distributed. Id. Accordingly, the Court ruled that since it was now obligated to "rigorously scrutinize" the evidence bearing on the differences between