18th Annual Workplace Class Action Report - 2022 Edition

240 Annual Workplace Class Action Litigation Report: 2022 Edition information, and dates of employment for all servers who worked at 13 of Defendant’s restaurants in the three years prior to her filing of the lawsuit. The Court granted the motion to compel this information on the grounds that individuals who worked as servers at Defendant’s restaurants would likely have information about the pay policies and practices alleged in the complaint and whether they were also subject to those policies and practices. Further, the names, contact information, and employment locations would potentially assist in determining whether the proposed collective action members were similarly-situated. Defendant also argued that should the request be granted, it should be limited to only the restaurant at which Plaintiff worked, and not for all 13 locations. The Court disagreed. It opined that nothing in the complaint supported a finding that the pay policies and procedures between the restaurant locations differed or were individualized in any manner (as Plaintiff alleged that all locations were "covered by the same human resources policies and pay policies"). Id . at *18. The Court concluded that the information requested was relevant to the central issue of whether all servers were subject to the same policies and procedures at all locations. In addition, Plaintiff requested information including the names, contact information, and dates of employment for lead managers at any of the 13 restaurant locations in the three years prior to filing her complaint. Plaintiff asserted that the testimony from managers "could easily support the Plaintiff’s allegations regarding denial of overtime pay from off-the-clock work." Id . at *19. The Court held that although the requested information might be relevant to the issue of conditional certification, the request was facially overbroad because it was not tied to the issues in the case, i.e ., whether the putative opt-in Plaintiffs were subject to the same complained-of decision, policy, or plan. Id . Accordingly, the Court declined to compel discovery of the lead managers’ contact information. For these reasons, the Court granted in part and denied in part Plaintiff’s motion to compel discovery. Kutzback, et al. v. LMS Intellibound, LLC , 2021 U.S. Dist. LEXIS 148396 (W.D. Tenn. Feb. 8, 2021). Plaintiffs filed a collective action alleging that Defendants violated the FLSA. The Court previously had conditionally certified a collective action and the parties commenced discovery. Defendants contended that Plaintiffs failed to produce interrogatory responses and requested documents as ordered by the Court. Defendants filed a motion to compel answers to interrogatories and production of documents it had requested and the Court granted in part and denied in part the motion. Plaintiff subsequently moved the Court to reconsider the motion as to the opt-in Plaintiffs’ interrogatory responses on the grounds that Defendants misrepresented the opt-ins’ interrogatory responses and that the Court relied on these alleged misrepresentations. Id . at *7. The Court ruled that Defendants did not misrepresent the interrogatory responses. The Court noted that the issue turned to whether the Phase II opt-in Plaintiffs failed to answer the interrogatories. The Court explained that while it was mindful of the difficulties inherent in providing exact off-the- clock hour calculations for so many opt-in Plaintiffs years after the fact, the opt-in Plaintiffs had an obligation to answer discovery to the best of their abilities. Id. at *15. As a result, the Court concluded that Plaintiff failed to demonstrate grounds for reconsideration. Plaintiff also sought clarification of the Court’s order regarding the supplemental interrogatory responses by questioning whether the supplemental responses must be verified once again. Plaintiff further requested the opportunity to calculate the number of off-the-clock hours worked for each opt-in by subtracting the number of hours the opt-ins allege to have worked in their individual interrogatory answers from the number of hours the opt-ins “were compensated for each workweek as reflected on Defendants’ payroll records.” Id . at *16. Defendants argued that the opt-in Plaintiffs must sign and verify their interrogatory responses under oath as provided in the Federal Rules of Civil Procedure. The Court held that Plaintiff’s attorneys indicated that they were willing to create charts based on the opt-ins’ estimates in the original interrogatory responses as compared to Defendants’ payroll records, and indicate the off-the-clock hours week-by-week. Since the charts would serve as the supplemental interrogatory responses, the Court reasoned that they could supplement the opt-ins’ original interrogatory responses, which were verified, with information derived from the original interrogatory responses. (x) DOL Wage & Hour Enforcement Actions U.S. Department Of Labor v. Arizona Logistics, Inc. , 2021 U.S. App. LEXIS 14727 (9th Cir. May 18, 2021). The U.S. Department of Labor (“DOL”) filed an enforcement action against Larry Browne and his companies Arizona Logistics Inc., d/b/a Diligent Delivery Systems, and Parts Authority Arizona LLC. Plaintiff alleged that Browne and his entities violated the FLSA’s minimum wage, overtime, recordkeeping, and anti-retaliation requirements by misclassifying delivery drivers as independent contractors rather than employees. Id . at *3. Browne moved to compel arbitration based on arbitration agreements that he and his entities entered into with