18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 141 motion for conditional certification of a collective action, which the Court granted. Plaintiff alleged that Defendants’ stores required delivery drivers to drive their personal cars to complete deliveries to customers, but failed to properly reimburse delivery drivers for their delivery-related expenses. Plaintiff contended that Defendants adopted a policy of reimbursing drivers on a routinely-evaluated per-mile rate based on store location and existing gas prices that was less than the IRS standard business mileage rate. Id . at *5. Further, Plaintiff alleged that every delivery driver was subject to the same uniform policies and procedures. While Defendants consented to the collective action being conditionally certified, the Court undertook an analysis of the motion and the arguments supporting the request for conditional certification. Based on that analysis, the Court found that Plaintiff made the requisite factual showing necessary for conditional certification under 29 U.S.C. § 216(b). Accordingly, the Court granted conditional certification of a collective action consisting of all current and former delivery drivers employed by Defendants’ stores that were owned, operated, and controlled by Defendants in Tennessee from May 10, 2018 to the present. Id . at *5-6. Holder, et al. v. A&L Home Care & Training Center , 2021 U.S. Dist. LEXIS 145586 (S.D. Ohio Aug. 4, 2021). Plaintiffs, of group of home health aides, 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 three separate collective actions, which the Court granted in part and denied in part. Plaintiffs alleged that they regularly worked more than 40 hours in a workweek, but were not paid the correct overtime rate. Plaintiffs asserted that when home health aides were compensated for hours spent working during the early mornings, late evenings, and weekends, they were paid a shift differential pay, but Defendant failed to include their shift differential rates in the calculation of their overtime worked in excess of 40 hours per week. Plaintiffs further contended that they were not correctly reimbursed for time spent driving to and from client home locations. Plaintiffs sought to certify a travel time collective action, a shift differential collective action, and a minimum wage collective action. In support of their motion, Plaintiffs offered their own declarations, which stated that they and other home health aides were instructed to report their shift start time as the time they first arrived at a client’s home and their shift end time as when they left. The declarations also averred that home health aides frequently needed to travel from one client location to another and were only reimbursed for their mileage and not paid for the time spent traveling. Plaintiffs also submitted paystubs that had a line item for “mileage,” but no place to indicate travel time. Id . at *10. The Court held that Plaintiffs’ evidence was sufficient to support the inference that they had actual knowledge of company-wide employment practices and other employees’ duties and pay structures. Accordingly, the Court granted Plaintiffs’ motion to conditionally certify the travel time collective action. In addition, the Court ruled that Plaintiffs’ declarations in support of conditional certification of the shift differential collective action included one statement from a scheduling supervisor who averred that home health aides received a shift differential hourly premium for certain hours. The Court opined that Plaintiffs therefore had made the requisite showing to demonstrate that there existed a similarly-situated group of collective action members for purposes of conditional certification. Accordingly, the Court granted Plaintiffs’ motion to certify the shift differential collective action. However, the Court found that as to the proposed minimum wage collective action, Plaintiffs’ declarations only contained accounts that applied to Plaintiffs themselves, and advanced no facts showing that Plaintiffs had actual or even constructive knowledge that their co-workers were denied minimum wage. For these reasons, the Court denied Plaintiffs’ motion as it related to the minimum wage collective action. Accordingly, the Court granted in part and denied in part Plaintiffs’ motion for conditional certification of a collective action. Jones, et al. v. Converse Electric, Inc., 2021 U.S. Dist. LEXIS 208962 (S.D. Ohio Oct. 29, 2021). Plaintiff, a warehouse employee, filed a collective action alleging that Defendant failed to include his cell phone reimbursement in his regular rate and to pay for lunch breaks in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court granted. Plaintiff sought conditional certification of a collective action including all hourly, non-exempt electricians/electrical technicians, electrical superintendents, electrical foreman, warehouse associates, and pre-fab employees who worked overtime without being compensated. In support of his motion, Plaintiff offered his own declaration and four additional declarations, all which outlined these allegations and stated that they were aware of other employees who were also subject to Defendant’s unlawful policy of not reimbursing for cell phones and not paying for lunch breaks. Defendant argued that Plaintiff was not similarly-situated to the proposed collective action members, and submitted its own declarations stating that: (i) not all employees received cell phone reimbursements; (ii) had the same lunch