18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 267 violation of the FLSA. The District Court granted Defendant’s motion to dismiss, finding that Plaintiff was exempt from the FLSA by the Motor Carrier Act (“MCA”). On appeal, the Fifth Circuit reversed and remanded the District Court’s ruling for further proceedings. Plaintiff contended that the Interstate Transportation of Dangerous Criminals Act of 2000 ("Jeanna’s Act") precluded the applicability of the MCA exemption to drivers involved in transporting prisoners, such that they were not exempted from the FLSA’s overtime-pay requirements. Plaintiff asserted that because Jeanna’s Act explicitly authorized the Attorney General to regulate employees of private prisoner transportation companies, the U.S. Department of Transportation (“DOT”) did not have that authority, and the MCA exemption therefore could not exempt her and others from overtime pay. In support of its contention that Plaintiff and other putative collective action members were excluded from the FLSA’s overtime- pay requirements because their jobs fell within the MCA exemption, Defendant relied on facts purportedly substantiated by the exhibits attached to its dispositive motion. Defendant argued that Plaintiff was under the DOT’s regulatory purview under Jeanna’s Act, which governed private prisoner transportation entities. Plaintiff argued that it was improper for the District Court to consider matters outside of her complaint to conclude that she was an exempt employee under the MCA exemption. Id . at *4. The Fifth Circuit concluded that interplay between the MCA exemption and Jeanna’s Act was correctly construed to be "both/and" regarding employers like Defendant, and accordingly, the Attorney General’s authority to regulate the transportation of violent prisoners in interstate commerce did not obviate the Secretary of Transportation’s authority to regulate employees of "motor carriers" and "motor private carriers" as contemplated by the MCA exemption. Id . at *11. The Fifth Circuit determined that Plaintiff’s position fell under both purviews. The Fifth Circuit thus agreed with the District Court that both Jeanna’s Act and the MCA exemption of the FLSA governed private prisoner transportation companies and their employees. However, the Fifth Circuit ruled that the District Court erred in dismissing Plaintiff’s claims at the motion to dismiss stage, because in crediting Plaintiff’s allegations most favorably to her, Plaintiff plausibly pled a prima facie claim for relief under the FLSA. Id . at *15-16. The Fifth Circuit explained that while Defendant adequately raised the MCA exemption as an affirmative defense to Plaintiff’s claim, the employer “has the burden of proving that the employee falls within the claimed exempted category." Id . at *16. The Fifth Circuit concluded that this could not be done by reviewing only the complaint, and was thus better suited for a summary judgment motion. For these reasons, the Fifth Circuit reversed and remanded the District Court’s ruling for further proceedings. (xxiii) Notice Issues In FLSA Collective Actions Brewer, et al. v. Alliance Coal, 2021 U.S. Dist. LEXIS 158730 (E.D. Ky. Aug. 23, 2021). Plaintiff, a coal mining employee, filed a collective action alleging that Defendants failed to pay all wages due in violation of the FLSA. The Court previously had granted Plaintiffs’ motion for conditional certification of a collective action. The parties thereafter filed status updates with the Court on the collective action notice forms and distribution protocol following a Court-mandated meet and confer to come to an agreement. The parties were unable to agree, and therefore the Court reviewed the reports and finalized the collective action notice forms and distribution protocol. The parties each submitted their own proposed versions of an opt-in notice form and consent form. The parties also disputed: (i) the issuance of a reminder notice, (ii) the providing of telephone numbers on the notice, (iii) the physical posting of notice in relevant facilities, and (iv) the usage of an electronic signature service. Defendants argued that a reminder notice was unnecessary and not warranted and that Plaintiff failed to offer any evidence as to the reasons for a reminder notice. The Court declined the issuance of a reminder notice, as it opined that Plaintiff failed to show why such a notice was necessary. Plaintiff requested that the Court direct Defendants to provide his counsel with telephone numbers for potential collective action members as an alternate form of notice for when mail or email were returned as undeliverable. The Court found that text messaging and voice calling would be overly intrusive and thus declined to direct Defendants to disclose the telephone numbers of potential collective action members. As to whether to physically post the notice at relevant mine facilities, the Court approved the physical posting of notice in conspicuous locations at the relevant mine facilities. The parties also disagreed on the usage of an electronic signature service ("DocuSign") for collecting responses to the opt-in notice forms. The Court held that Plaintiff provided justification for electronic signatures and the process was used successfully in a substantially identical action. Finally, the Court noted that the parties’ opt-in consent forms were basically identical and thus it approved Plaintiff’s form. The Court noted that Defendants’ proposed opt-in notice form used the phrase "additional party Plaintiff" where Plaintiff’s forms use the word "participant." Id . at *13. The Court held that the word "participant" better aligned with "the broad remedial goal" of the FLSA, and thus it approved the word “participant” in the