18th Annual Workplace Class Action Report - 2022 Edition

146 Annual Workplace Class Action Litigation Report: 2022 Edition otherwise acted unlawfully. The Court noted that at this stage of the litigation, Plaintiff’s declarations and evidentiary support of screenshots were sufficient to establish that multiple deductions occurred. Further, the Court reasoned that the declarations sufficiently attested they were aware of these overtime violations with respect to other drivers based upon personal knowledge and conversations. The Court therefore concluded that the declarations were founded on personal knowledge and Plaintiff made a modest factual showing that a widespread, FLSA-violating practice occurred. Id . at *13. Accordingly, the Court found that Plaintiff made the requisite showing necessary to demonstrate that he was similarly-situated to other proposed collective action members for purposes of conditional certification. For these reasons, the Court granted Plaintiff’s motion for conditional certification of a collective action. Merriwether, et al. v. Temple Plaza Hotel, Inc. , 2021 U.S. Dist. LEXIS 30609 (E.D. Mich. Feb. 19, 2021). Plaintiffs, a group of exotic dancers at an adult night club, filed a collective action alleging that Defendants misclassified the dancers as independent contractors and thereby failed to pay them minimum wages and overtime compensation in violation of the FLSA. Plaintiffs filed a motion for conditional certification of a collective action, which the Court granted. Plaintiffs contended that Defendants did not pay dancers any compensation, and they only received tips from customers. In support of their motion, Plaintiffs offered their own declarations in which they averred that Defendant had significant control over Plaintiffs’ employment, including telling them what to wear, when to dance, when they were scheduled to work, and when they could leave at the end of the shift. At the end of each shift, Defendants required Plaintiffs to give a portion of their tips, generally $155, to Defendants through the manager on-duty. Id . at *3. Defendants also required Plaintiffs to engage in a tip pooling arrangement where they paid the “house mom” $10 and the DJ $20 each time they worked. Id . Defendants argued that Plaintiffs were correctly classified as independent contractors and they failed to provide evidence of a common policy or plan that violated the FLSA. The Court, however, determined that Defendant’s argument went to the merits of the claims, and was therefore unsuitable to address at the first stage of conditional certification. Defendants also contended that Plaintiffs proposed collective action was not manageable because it included dancers “with different entertainment schedules, different methods and means of earning compensation from Defendant’s clients, who entertained on disparate and varying days of the week for disparate hours and for widely varying durations of time." Id . at *7. The Court disagreed with Defendant’s position. It determined that the collective action members need not be identical, but only similar. The Court therefore found that Plaintiffs met their burden to establish that they were similarly-situated to the membership of the proposed collective action. Accordingly, the Court granted Plaintiffs’ motion for conditional certification of a collective action. Miner, et al. v. Newman Technologies, Inc., 2021 U.S. Dist. LEXIS 155242 (N.D. Ohio Aug. 18, 2021). Plaintiff, an hourly non-exempt employee, 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 denied. Plaintiff sought to conditional certification of a collective action consisting of all former and current manufacturing employees over the previous three years. Plaintiff asserted that Defendant failed to pay for: (i) time spent donning personal protective equipment prior to the start of shifts; (ii) time spent walking to work locations after donning the personal protective equipment; (iii) time spent walking from the production floor to a changing area to remove personal protective equipment; (iv) time spent doffing the personal protective equipment at the end of the shift; and (v) lunch breaks during which work was performed. In support of her motion, Plaintiff offered her own declaration and the declarations of three other manufacturing employees, which stated that employees were not compensated for changing into and out of “personal protective equipment such as a shirt, pants, steel toe boots, earplugs, safety glasses, gloves and/or sleeve guards." Id . at *12. Defendant contended that: (i) Plaintiff provided insufficient evidence in support of her motion because she offered only "vague, generic declarations devoid of any foundation" for the allegations; (ii) that the proposed collective action was overbroad and that Plaintiff’s claims were unique to her and, therefore, improper for treatment as a collective action; and (iii) that the motion was premature and that limited discovery was required prior to ruling on the motion for conditional certification. Id . at *7-8. The Court opined that Plaintiff’s declarations failed to provide information as to whether or not all manufacturing employees were similarly-situated to one another and whether the required donning and doffing was integral and indispensable to their duties. Id . at *14-15. Based on the record before it, the Court opined that any donning and doffing violations likely varied based on job title and duties. Id . at *15. The Court further reasoned that that Plaintiff’s claims and the claims of other hourly employees