18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 175 motion for class certification for operators subject to Defendant’s standby policy. However, with respect to the waiting time penalties subclass, the Court ruled that whether each employee was discharged or quit within the class period would require individualized proof, and therefore, the subclass could not meet the predominance requirement. The Court therefore denied class certification as to the waiting time penalties subclass. Droesch, et al. v. Wells Fargo Bank, N.A. , 2021 U.S. Dist. LEXIS 87123 (N.D. Cal. May 6, 2021). Plaintiffs, a group of telephone-dedicated employees, filed a collective action alleging that Defendant required pre-shift and post-shift work without compensating them for the work in violation of the FLSA. Plaintiffs filed a motion for conditional certification of a collective action, which the Court granted. Plaintiffs contended that they were required to be logged-in to their phones by their start time and were thus required to perform off-the-clock work for which they are not compensated, including: (i) "booting up computers, initializing several software programs, and reading company emails and/or instructions" prior to the start of their shift and before they could log-in to "Soft Phone, which commenced and recorded the paid portion of their workday;” and (ii) "completing customer service calls, closing down the software programs, logging-off the system, securing their workstations, locking their desk drawers, and securing any customer or proprietary information after the end of their scheduled shift times." Id . at *12-13. Plaintiffs submitted their own declarations in which they averred that they were required to open and initialize software systems and required to read company emails and instructions prior to clocking-in to Soft Phone. Defendant argued that Plaintiffs’ declarations were contradicted by deposition testimony and were boilerplate documents. The Court, however, declined to consider Defendant’s objections to the declarations at this stage of conditional certification. The Court found that Plaintiffs made the adequate necessary threshold showing that they were similarly-situated to other telephone-based employees who were required to perform off- the-clock pre-shift and post-shift work. For these reasons, the Court granted Plaintiffs’ motion for conditional certification of a collective action. Durham, et al. v. Sachs Electric Co., 2021 U.S. Dist. LEXIS 13585 (N.D. Cal. Jan. 25, 2021). Plaintiff, a project foreman, filed a class action alleging that Defendant violated various provisions of the California Labor Code. Plaintiff filed a motion for class certification pursuant to Rule 23, which the Court granted in part. Plaintiff alleged that Defendant violated the Labor Code by: (i) requiring project employees to ride in company buggies to job sites before the start of the workday without compensation; and (ii) requiring employees to stay at their job sites during the entire workday, including meal periods. The time it took the employees to ride in the buggies from the parking lot to the installation site varied from approximately 10 to 15 minutes. Plaintiff contended that he was informed by his supervisor to "only reflect the scheduled work hours on the timesheets for [his] crew members and not to include the time waiting for and traveling on the buggies between the parking lot and the Installation Site." Id . at *4-5. With respect to meal breaks, Plaintiff asserted that he was "told by Sachs management that we workers were required to stay on the job site during the entire workday from the beginning of the workday to the end of the workday." Id . at *5. Plaintiff sought class certification of two classes and two subclasses, including: (i) an unpaid wages class of employees who were not paid for time spent waiting for buggies; (ii) a meal period time class of those who were not paid for meal periods; (iii) a subclass consisting of class one and two members whose employment had already been terminated; and (iv) a subclass of members in class one and two who had received wage statements. In support of his motion, Plaintiff offered 19 declarations from employees supporting his allegations. Defendant submitted 44 declarations from employees averring that they were compensated for waiting time and an employee handbook outlining policies and procedures. The Court found certification of the unpaid wages class and the two subclasses appropriate, and denied certification of the meal period class. The Court noted that the class was sufficiently numerous at over 768 class members The Court also determined that common questions between class members existed, such as whether Defendant had a policy requiring workers to take buggy rides, whether the rides were compensable, and if so, whether employees received compensation for the rides. The Court also found that Plaintiff met the adequacy and typicality requirements of Rule 23(a). As to the Rule 23(b) predominance requirement, the Court held that Plaintiff presented sufficient evidence to demonstrate an unofficial policy existed and applied uniformly to all class members. Finally, the Court ruled that a class action would be the superior method of adjudication given the relatively small amount of recovery for each putative class member. For these reasons, the Court granted in part Plaintiff’s motion for class certification.