18th Annual Workplace Class Action Report - 2022 Edition

150 Annual Workplace Class Action Litigation Report: 2022 Edition overwhelm any trial as a collective action. Thus, because Plaintiffs failed to demonstrate that they were similarly- situated, there would be no judicial economy gained by allowing the collective action to proceed. For these reasons, the Court found all factors weighed in favor of decertification, and thus it granted Defendant’s motion. Russo, et al. v. Moore Ingram Johnson & Steele, 2021 U.S. Dist. LEXIS 140749 (M.D. Tenn. July 28, 2021). Plaintiff, a non-exempt legal assistant, 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. Plaintiffs sought conditional certification of a collective action consisting of all other non- attorney support staff employees over the previous three years. In support of her motion, Plaintiff offered her own declaration and the declaration of another opt-in Plaintiff. Plaintiff’s declaration stated that she was informed by the office manager that her hours would be from 8:30 a.m. to 5:00 p.m., with a one-hour lunch break; however, she attested that her job duties regularly required her to work in excess of 40 hours per week. Plaintiff further averred that she regularly arrived early, worked through lunch, or stayed late, and was never paid for overtime compensation if she worked more than 40 hours in a workweek. The opt-in Plaintiff’s declaration agreed with Plaintiff that she was in the office over 40 hours per week for almost every week in which Plaintiff worked for Defendant. In opposition, Defendant provided a declaration from its human resources representative, stating that Defendant maintained a policy governing overtime, which explained that absent special workload requirements, the secretarial and non-exempt administrative staff was expected to work from 8:30 a.m. until 5:00 p.m. The declaration also asserted that Defendant required “employees to report any and all overtime” and to "seek approval before working in excess of 40 hours in any one workweek" and that employees who violated these policies may be subject to disciplinary action. Id . at *26. Defendant’s declaration also averred that Defendant maintained a "policy stating that all employees will be compensated for all hours worked, including for any overtime hours worked in excess of 40 hours in a workweek." Id . Plaintiff alleged that Defendant’s practice of scheduling employees to work 37.5 hours while actually expecting them to work 40 hours per week was evidence of a common policy or practice in violation of the FLSA, because non-exempt employees were actually paid a salary. The Court found that Plaintiff failed to make the requisite showing that she was similarly-situated to other members of the proposed collective action. The Court also reasoned that Plaintiff sufficiently alleged that she herself worked overtime and was not compensated for overtime work as required, but that the complaint and supporting declarations failed to contain any specific factual allegations regarding the working conditions of other employees. The Court explained that additional declarations from other employees were not essential, but that Plaintiff failed to offer some factual basis for her presumption that the employees she witnessed working outside their normally scheduled hours actually worked overtime. For these reasons, the Court denied Plaintiff’s motion for conditional certification of a collective action. Smith, et al. v. Guidant Global, Inc., 2021 U.S. Dist. LEXIS 142341 (E.D. Mich. July 30, 2021). Plaintiff, an hourly employee, filed a collective action alleging that Defendant failed to pay overtime compensation in violation of the FLSA. Plaintiff previously had filed a motion for conditional certification of a collective action, which the Court denied as overly-broad. Plaintiff subsequently filed a renewed motion for conditional certification with a more defined scope, which the Court granted. Plaintiff’s previous proposed collective action consisted of 200,000 workers employed by 1,600 staffing agencies in over 56 companies. That group was described as “all workers covered by a Guidant Staffing Company Agreement who were paid straight time for overtime within the past 3 years." Id . at *3. Although the Court expressed concern with the manageability of such a large and diverse collective action, it otherwise found that Plaintiff sufficiently demonstrated that he was similarly-situated to the members of the proposed collective action. Plaintiff subsequently requested conditional certification of a collective action consisting of “all current and former power industry workers who worked for, or on behalf of, Guidant, who were paid and/or billed on a straight time for overtime basis at any time in the last 3 years, and who were assigned to Duke and/or Entergy (the "Straight Time Power Workers"). Id . at *3-4. In support of his motion, Plaintiff reincorporated his original exhibits including pleadings, declarations from several workers, Defendant’s employment records, and pay records. Additionally, Plaintiff included transcripts of three Rule 30(b)(6) depositions, staffing company agreements with vendors, master service agreements, and a sealed list of Guidant’s power workers. Defendant argued that the members of the proposed collective action were not similarly-situated and litigation of their claims was not manageable. The Court opined that Plaintiff had presented sufficient evidence showing that he and potential opt-in Plaintiffs were similarly-situated as victims of a common policy or plan that violated the FLSA, i.e., Defendant’s pay of straight time for overtime hours worked.