18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 145 similarly-situated to potential opt-in Plaintiffs, as they were subject to Defendant’s misclassification policy. Id . at *18-19. Accordingly, the Court granted Plaintiff’s motion for conditional certification of a collective action. Marlow, et al. v. Mid-South Maintenance Of Tennessee, 2021 U.S. Dist. LEXIS 48614 (M.D. Tenn. March 16, 2021). Plaintiff, a Customer Case Representative in Defendant’s dispatch department, filed a collective action alleging that Defendant misclassified her as exempt and thereby failed to pay overtime compensation in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court denied. In support of her motion, Plaintiff offered her own declaration and the declaration of a dispatcher working for Defendant. In the declaration, Plaintiff averred that she regularly performed non- supervisory work and was treated as an exempt employee. Plaintiff further stated that she and others in the department regularly worked over 40 hours in a workweek without being paid overtime compensation. The opt- In Plaintiff averred that she was also classified as an exempt employee, despite performing only clerical work, and that she was aware that other dispatchers were paid in the same manner. Defendant argued that Plaintiff failed to meet her burden to show that she was similarly-situated to others in the dispatch department. The Court agreed that Plaintiff’s declarations provided no evidence to support her case theory or to explain how she was aware that other employees had the same overtime situation. The Court reasoned that conclusory allegations could not support a request for conditional certification. The Court further determined that Plaintiff failed to allege any facts based on personal knowledge to show that other hourly employees were paid under the same circumstances. The Court thus held that Plaintiff failed to establish factual support for the existence of a policy or practice that violated the FLSA. Id. at *18. For these reasons, the Court denied Plaintiff’s motion for conditional certification of a collective action. Mata, et al. v. STA Management, LLC, 2021 U.S. Dist. LEXIS 168190 (E.D. Mich. Sept. 5, 2021). Plaintiff, a 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 alleged that Defendant’s reimbursement policy to pay drivers for the expense of owning and operating a vehicle for delivery was fundamentally flawed because the flat reimbursements amounted to less than the reasonable approximate amount of the drivers’ automobile expenses. Since drivers were paid minimum wage, Plaintiff claimed that this led to their pay falling below the minimum wage. Plaintiff argued that he and putative collective members performed the same job duties, were reimbursed on a per-delivery basis, were subject to the same employment policies across all locations, and were paid a sub-minimum wage rate. Id . at *12. Defendant argued that Plaintiff failed to provide evidence of a policy in violation of the FLSA. The Court rejected this argument. It reasoned that this went to the merits of Plaintiff’s claims, and was not appropriate to consider at the initial stage of conditional certification. According to his declaration, Plaintiff was paid at a rate of approximately $7.40 per hour and reimbursed approximately $1.04 per delivery, which he asserted amounted to "far less" than the expenses incurred. Id. at *6. Plaintiff also offered declarations from two opt-in Plaintiffs who had the same experiences. All three drivers averred they knew of other drivers employed by Defendant who were subject to the same allegedly inadequate reimbursement policy. The Court concluded that Plaintiff had submitted sufficient evidence to satisfy his burden for conditional certification. The Court therefore granted Plaintiff’s motion. McElwee, et al. v. Bryan Cowdery, Inc., 2021 U.S. Dist. LEXIS 208968 (S.D. Ohio Oct. 29, 2021). Plaintiff, a delivery driver, 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. Plaintiff sought conditional certification of a collective action consisting of all delivery drivers for Defendant’s locations over the previous three years. In support of his motion, Plaintiff offered his own declaration and declarations of several opt-in Plaintiffs, which averred that Defendant intentionally deducted overtime hours through altering delivery drivers’ time entries. Each declarant asserted the he or she was a delivery driver of a vehicle weighing under 10,000 pounds and was paid on a "day rate" basis with a one-and-one-half overtime rate. Id . at *7. The declarations further stated that delivery drivers were covered by the same pay policies and practices and logged their hours in the same way. Plaintiff also submitted evidence of screenshots showing the time system screen, which indicated that drivers’ hours worked did not mirror the hours paid. Defendant argued that Plaintiff lacked sufficient personal knowledge of how other drivers were paid to show that he and the putative members of the proposed collective action were similarly-situated. Defendants also contended that Plaintiff had no evidence that Defendants deducted compensable overtime from other delivery drivers, or