18th Annual Workplace Class Action Report - 2022 Edition

176 Annual Workplace Class Action Litigation Report: 2022 Edition Feltzs, et al. v. Cox Communications California, LLC, 2021 U.S. Dist. LEXIS 146447 (C.D. Cal. June 1, 2021). Plaintiffs, a group of cable technicians, filed a class action alleging various violations of the California Labor Code. Plaintiffs filed a motion for class certification pursuant to Rule 23. Defendant independently filed a motion to deny class certification. The Court granted the motion to certify the class with respect to the time shaving/rounding and wage statement claims (and correspondingly denied Defendant’s motion to deny certification with respect to these claims), and denied the motion to certify (and correspondingly granted Defendant’s motion to deny certification) with respect to the meal break claims. First, as to numerosity, the Court noted that at 539 individuals, Plaintiffs sufficiently demonstrated that the proposed class was so numerous that joinder of all class and subclass members would be impracticable. Plaintiffs contended that all the questions at issue had common answers. The Court agreed that the commonality requirement was met as to both classes. The Court also held that Plaintiffs sought recovery based on the same legal theories and factual circumstances as the proposed class members they sought to represent and thus established typicality. The Court also reasoned that Plaintiffs and their counsel would adequately represent the class and subclasses. As to the Rule 23 requirements, Plaintiffs contended that common issues predominated because the class-wide policies – the alleged failure to pay wages due to time rounding/shaving, failure to provide meal periods, failure to provide accurate wage statements, and failure to pay all wages due at separation – were at issue. The Court, however, found that in the absence of a class-wide policy or practice interfering with the ability of the class as a whole to obtain meal periods, each putative class member would need to be analyzed on an individualized basis to determine if he or she took a meal period on a particular occasion and, if not, why they did not do so. Id . at *18. Accordingly, the Court denied the motion as to Plaintiffs’ meal period claims to the extent that they were based on the theory that Defendant interfered with the ability to take a compliant off-duty meal period each day and to the extent that they alleged Defendant failed to provide a second meal period after 10 hours because they did not meet the predominance requirement of Rule 23(b)(3). Regarding the time shaving/rounding claims, Defendant did not dispute that it had a common policy of rounding all timekeeping entries to the nearest 15- minute increment. The Court determined that a class action for the time shaving/rounding claims would be the superior method of adjudication because the putative class members are hourly employees with relatively modest individual claims, and the claims were manageable and well-suited for class certification. For these reasons, the Court granted in part and denied in part the motion for class certification. Frausto, et al. v. Bank Of America N.A., 2021 U.S. Dist. LEXIS 114027 (N.D. Cal. June 17, 2021). Plaintiffs, a group of non-exempt employees, filed a class action alleging off-the-clock and meal-and-rest-break violations of the California Labor Code. The Court previously had granted Plaintiffs’ motion for class certification, and certified classes: (i) for the off-the-clock claim, all Treasury Services Advisors (in call centers) and all Assistant Managers (in financial centers); and (ii) for the meal-and-rest-breaks claims, all Treasury Services Advisors. Defendant filed a motion for reconsideration of the class certification ruling, and the Court granted the motion and subsequently denied Plaintiffs’ motion for class certification. Plaintiffs alleged that Defendant’s de facto policies: (i) made off-the-clock work unavoidable because employees must work before they log-in for their shifts and after they log-out; and (ii) set performance goals that made it impossible to take meal-and-rest breaks. Id . at *6. The Court had initially determined that there were common questions for the classes regarding Defendant’s system-wide implementation of its policies that would generate common answers apt to drive the resolution of the litigation. After Defendant moved for reconsideration on the ground that Plaintiffs did not advance those theories of liability or provide evidence in support of those theories, the Court found that the evidence did not suggest de facto policies, and thus common issues did not predominate. The Court determined that due to the lack of de facto policies, any issues about overtime and breaks would consist of individualized inquiries, thereby defeating class certification. Gardner, et al. v. G.D. Barri & Associates , 2021 U.S. Dist. LEXIS 113841 (D. Ariz. June 17, 2021). Plaintiff, a construction manager, 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 contended that he was paid $75 per hour for each hour worked, even when he worked over 40 hours in a workweek. Plaintiff sought conditional certification of a collective action consisting of all employees who were paid straight time for overtime and staffed to power plants or similar facilities in the last three years. Id . at *3. Defendant contended that the collective action membership description was fundamentally flawed because it did not pay any employees straight time if the employee worked overtime hours, and instead it paid