18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 135 Campbell, et al. v. Middle Kentucky Community Action Partnership LLC , 2021 U.S. Dist. LEXIS 96005 (E.D. Ky. May 20, 2021). Plaintiff, a transportation driver, filed a collective action alleging that Defendant, a non- profit service provider for low-income individuals, failed to pay overtime compensation in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court granted in part. Plaintiff offered her own declaration and two additional transportation drivers’ declarations that averred that Defendant did not pay overtime compensation for hours worked over 40 in a workweek. The declarants further attested that they were aware of others similarly-situated to them who were employed as transportation drivers and were also not paid overtime compensation. Defendant asserted that the amount of time worked by each driver would lead to individual defenses making the collective group unsuitable for conditional certification. The Court rejected this argument. It opined that the possibility of individual defenses would not defeat conditional certification when Plaintiffs alleged a common policy uniting all potential members’ claims. The Court held that Plaintiffs sufficiently alleged that other drivers were "were paid in the same way and did not receive overtime compensation even when they worked more than 40 hours in a workweek." Id . at *7. The Court determined that Plaintiffs met the requisite burden for conditional certification. The Court therefore granted Plaintiffs’ motion for conditional certification of a collective action consisting of all transportation workers over the previous three years. Church, et al. v. Pine Club, 2021 U.S. Dist. LEXIS 131666 (S.D. Ohio July 15, 2021). Plaintiff, a restaurant server, filed a collective action alleging that Defendant failed to pay minimum wages and overtime compensation in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, and the Court denied the motion. Plaintiff sought conditional certification of a collective action consisting of all tipped servers for which a tip credit was applied. In support of her motion, Plaintiff offered her own declaration in which she stated that she worked with approximately 10 other tipped servers, with whom she discussed their wages and that she was aware that they all made under the federal minimum wage of $7.25 per hour. Id. at *12. Plaintiff further averred that, although Defendant held meetings with the tipped servers to discuss their personal tax obligations stemming from the tips they received, Defendant never discussed the FLSA, and nothing in Defendant’s employee handbook discussed the FLSA or the tip credit requirements. The Court noted that case law authorities typically require a sworn statement from at least one other employee to support a finding that Plaintiff was similarly-situated to other proposed collective action members. The Court opined that it was unlikely that Plaintiff would have been privy to any conversations that Defendant may have had with other tipped servers at the time they were hired concerning their hourly wage and any tip credit that Defendant planned to take. Id . at *15. The Court therefore ruled that Plaintiff failed to make the requisite showing necessary to demonstrate that she was similarly-situated to the members of the proposed collective action. For these reasons, the Court denied Plaintiff’s motion for conditional certification of a collective action. Clevenger, et al. v. SMCS Services , 2021 U.S. Dist. LEXIS 80080 (N.D. Ohio April 27, 2021) . Plaintiffs, a group of licensed practical nurses (“LPNs”), filed a collective action alleging that Defendants failed to pay for all hours worked in violation of the FLSA. Plaintiffs filed a motion for conditional certification of a collective action, which the Court granted. In support of their motion, Plaintiffs offered their own declarations, which averred that they performed home healthcare work on an hourly basis, including shift-care work for approximately 10 to 15 minutes before and after every shift. Plaintiffs contended that they were told by Defendants’ administrator not to report this time on their timesheet, and as a result, Plaintiffs were not paid for time spent on shift-care work, which resulted in the failure to pay overtime. Plaintiffs sought conditional certification of a collective action consisting of all present and former full-time hourly homecare providers, including HHAs, STNAs, and LPNs, employed by Defendants, who performed Shift Reporting in Ohio from 3 years preceding the Court’s order to the present. Id . at *5. Defendants contended that Plaintiffs failed to establish that they were similarly-situated to the members of proposed collective action because they could not demonstrate that there were others who heard the administrator say to not report the work performed on their timesheets. The Court determined that Plaintiffs satisfied the requisite burden required for conditional certification, as they had demonstrated that Defendants required homecare workers to engage in shift reporting and that the policy applied to all individuals that worked overlapping shifts. Id . at *7. The Court found that the affidavits submitted by Plaintiffs were sufficient as they indicated that they "know the experiences of others" were similar to their experiences. Id . The Court ruled that the evidence submitted by Plaintiffs was sufficient at the conditional certification stage to show that Plaintiffs were similarly-situated to the members of the proposed collective action. For these reasons, the Court granted Plaintiffs’ motion for conditional certification of a collective action.