18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 179 Plaintiff estimated she worked 15 minutes before she clocked-in for a scheduled shift, and for 30 minutes after she clocked-out. Id . at *17. Plaintiff also asserted that nurses were regularly required to work during their meal breaks. Plaintiff sought to certify a collective action of nurses, nurse aides, nurse assistants, and other similar hourly and non-exempt employees subject to Defendant’s timekeeping policies. In support of her motion, Plaintiff submitted her own declaration and the declarations of eight other employees, all which stated that they were not paid for meal breaks, even when they were interrupted during the breaks and not relieved of their duties. Defendant contended that Plaintiff was not similarly-situated to the members of the putative collective action because each employee would have individualized facts regarding their alleged missed meal times such that collective treatment was not appropriate. Defendant argued that the declarants’ meal periods were disrupted in different ways and for different reasons, thus requiring a "fact-laden inquiry." Id . at *19. Thus, Defendant contended that Plaintiff failed to make a showing of a common policy, or plan in violation of FLSA. However, the Court rejected Defendant’s position. It reasoned that Defendant’s arguments went to the merits of Plaintiff’s claims, and thus were not suitable to consider at the conditional certification stage. The Court ruled that Plaintiff plausibly alleged that employees responsible for patient care, such as RNs, were not compensated for work performed "off-the- clock," whether the time was during a meal period or before or after a scheduled shift. Id . at *20. Accordingly, the Court held that Plaintiff had established a common policy or plan in violation of FLSA sufficient to satisfy the standard for conditional certification of a collective action. James, et al. v. Uber Technologies, Inc., 2021 U.S. Dist. LEXIS 14642 (N.D. Cal. Jan. 26, 2021). Plaintiffs, a group of current and former Uber drivers, filed a class action alleging that Defendant improperly classified Plaintiffs as independent contractors in violation of California Labor Code. Plaintiffs asserted various causes of action, including: (i) failure to reimburse business expenses; (ii) failure to pay minimum wages; (iii) failure to pay overtime; (iv) failure to provide properly itemized pay statements; (v) failure to provide paid sick leave; and (vi) unlawful business practices. Id. at *3. In calculating their alleged deficiencies in wages and paid leave, Plaintiffs requested that the Court consider all of their time spent on the Uber application as hours worked. Plaintiffs filed a motion for class certification, which the Court granted in part and denied in part. In terms of Rule 23(a)’s requirements for class certification, the Court held that because Defendant identified nearly 5,000 putative class members, Plaintiffs satisfied the ascertainability and numerosity requirements. The Court also found that Plaintiffs met the typicality and adequacy requirements given that Defendants’ arguments concerning the variety of outside work allegedly performed by Plaintiffs was more appropriate for an analysis of commonality and predominance. With respect to commonality, the Court reasoned that the common question of whether Defendant misclassified its drivers as independent contractors should be answered through the “ABC Test.” Id . at *8. To defeat the presumption under this test that a worker is an employee, the “hiring entity” must establish that the worker: (a) “is free from control and direction of the hirer”; (b) “performs work that is outside the usual course of the hiring entity’s business”; and (c) “is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.” Id. at *10-11. To that end, the Court engaged in its Rule 23(b)(3) predominance analysis using the ABC Test as a framework. The Court reasoned that Plaintiffs satisfied the predominance requirements for prongs A and B of the ABC Test, but failed to rebut Defendant’s argument that individual issues predominated with respect to prong C. Specifically, Defendant averred that certain Plaintiffs worked for other third-party gig economy entities or promoted their own transportation services while waiting for rides through Defendant’s platform. The Court agreed that addressing such an issue would require individualized proof. As to Plaintiffs’ substantive allegations, the Court held that only Plaintiffs’ expense reimbursement and itemized pay statement claims satisfied the predominance requirement, whereas their minimum wage, overtime, and paid sick leave claims would have to be adjudicated on an individualized basis. Id. at *34-35. The Court reached this conclusion because the expense reimbursement claim related to Defendant’s uniform reimbursement policies, and determination of the itemized wage statement claim involved every putative class member regardless of their third-party business pursuits. However, since Plaintiffs sought to include all time spent on Defendant’s application in its requests for unpaid wages and sick leave, determining Plaintiffs’ compensable time – especially in light of Defendant’s argument regarding Plaintiffs’ alternative business pursuits while using the Uber application – would be too complex and individualized to warrant class certification. Accordingly, the Court granted in part and denied in part Plaintiffs’ motion for class certification.