18th Annual Workplace Class Action Report - 2022 Edition

136 Annual Workplace Class Action Litigation Report: 2022 Edition Cockrell, et al. v. Spring Home Health Care , 2021 U.S. Dist. LEXIS 88552 (S.D. Ohio May 10, 2021). Plaintiff, a home health aide, 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, which the Court granted in part. Plaintiff sought conditional certification of a collective action consisting of all home health aides over the previous three years. Plaintiff contended that Defendant artificially lowered her hourly rate and therefore, when calculating overtime compensation, the time and a half rate did not equal the correct amount. Plaintiff asserted that her hourly rate was actually $12.00 per hour, but that, she was paid a standard hourly rate of $8.70 and an overtime rate of $13.05. Plaintiff alleged that Defendant "supplemented" the wages paid at $8.70 an hour with a “mileage” payment, which brought the hourly rate to $12.00. Id. at *3. In support of her motion, Plaintiff submitted her own declaration and paystubs that showed the hourly rate of $8.70 and the “mileage” rate which brought the minimum wage to the $12.00 per hour. In her declaration, Plaintiff averred that she was aware that Defendant’s policy and practices were company-wide pay policies and practices that applied to all home health employees. Defendant argued that Plaintiff failed to establish that she was similarly-situated to the proposed collective action members. Defendant offered its own declaration, which outlined the differences between the pertinent healthcare positions. The Court determined that it would not resolve the factual dispute that Defendant attempted to create by submitting a competing declaration at the first stage of conditional certification briefing. The Court reasoned that at this stage of the litigation, Plaintiff’s declaration stating that she was aware of and had personal knowledge that Defendant’s policies and practices applied to herself and to all home health employees was sufficient to establish that she was similarly-situated to the other putative collective action members. Id . at *8. The Court held that Plaintiff met the burden required at the conditional certification stage. The Court reasoned that Plaintiff sufficiently identified a group of employees who were all subject to Defendant’s policy that artificially deflated overtime compensation. For these reasons, the Court granted Plaintiff’s motion for conditional certification of a collective action. Crace, et al. v. Viking Group , 2021 U.S. Dist. LEXIS 36129 (S.D. Ohio Feb. 26, 2021). Plaintiff, a tipped pizza delivery driver, filed a collective action alleging that Defendant 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. Plaintiff contended that Defendant required delivery drivers to perform non-tipped work during their shifts, which resulted in them receiving less than minimum wage. In support of his motion, Plaintiff offered his own affidavit in which he averred that he spent between 30% and 50% of his time each shift doing non-tipped work, and that he only received between $4.08 and $4.35 per hour. Plaintiff further attested that there were 40 to 50 other tipped employees who were paid in the same manner and who were subject to the same practice of being required to perform extensive amounts of non-tip producing work. Id . at *3. At the outset, the Court declined to address the merits of the claims and whether the U.S. Department of Labor’s “20% rule” and subsequent 2018 Handbook update should apply to the reasonableness of the tipped duties. Id. The Court opined that Plaintiff adequately alleged the putative collective action members were all subject to Defendant’s practice and thus all subjected to Defendant’s alleged statutory violation to satisfy the requirements for conditional certification. Id . at *14. Accordingly, the Court found that Plaintiff was sufficiently similarly-situated to the members of the proposed collective action. For these reasons, the Court granted Plaintiff’s motion for conditional certification. Davis, et al. v. Kowalski Heat Treating Co. , 2021 U.S. Dist. LEXIS 64570 (N.D. Ohio April 2, 2021). Plaintiff filed a collective action alleging that Defendant failed to pay for meal breaks and 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. Plaintiff asserted that Defendant deducted 30 minutes for mealtime on a daily basis from employees’ hours, even though employees did not always take meal breaks. Plaintiff further contended that Defendant miscalculated discretionary bonuses and failed to pay overtime. Plaintiff sought to certify a collective action consisting of “all current and former hourly, non-exempt production employees of Defendant who worked 40 or more hours in any workweek and had one or more of the following occur: (i) the application of Defendant’s meal deduction; (ii) the performance of pre-shift work; and/or (iii) they earned a production bonus during the three years preceding the filing of the motion and continuing through the final disposition of this case. Id . at *4. In support of the motion, Plaintiff offered his own affidavit and the affidavits of two opt-in Plaintiffs, which all stated that they were subject to the same policies and procedures. Defendant argued that the circumstances, work responsibilities, and payment structures for employees outside of the salt bath division varied such that they were not similarly-situated. Defendant further claimed that information in Plaintiff’s affidavits was inaccurate or