18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 275 to avoid dismissal. Id . at *9. For these reasons, the Fourth Circuit affirmed the District Court’s ruling granting Defendant’s motion to dismiss. Moshtagh, et al. v. Home Depot U.S.A. , 2021 U.S. Dist. LEXIS 91757 (W.D. Wash. May 13, 2021) . Plaintiff, an hourly worker, filed a class action alleging that Defendant violated various provisions of Washington wage & hour laws. Plaintiff contended that Defendant had an unlawful policy and practice of deducting money from paychecks for The Homer Fund charity, failed to provide rest breaks, failed to pay for all time on-duty, willfully withheld wages, and breached the Washington Consumer Protection Act ("CPA"). Id . at *3. Defendant filed a motion for summary judgment, which the Court granted. As to the Homer Fund allegation, Plaintiff contended that Defendant pressured employees to donate to the Fund, that it benefited from the donations, that only a “small fraction of employees who ‘donate’ actually received charity from The Homer Fund," and that "giving to The Homer Fund was no guarantee that an employee will actually receive money from The Homer Fund." Id . at *6. The Court found that had any deductions taken from Plaintiff’s paycheck were done with his express permission in writing. Further, the parties agreed that Defendant did not receive any financial profit from the deductions, and even if any kind of non-financial benefit was prohibited by the regulation, any such benefit was not sufficiently supported by the record. The Court thus determined that there was no wage & hour violation. Plaintiff also claimed that Defendant had a policy and practice of requiring employees "to clock-out and then wait for a manager to unlock the store doors before leaving the premises" that violated state law. Id . at *8. The Court opined that according to Plaintiff’s assertions, managers and department supervisors saw him waiting when they unlocked the door for him to leave following shifts. However, the Court determined that the mere fact that it was possible that someone may have seen Plaintiff waiting at the door was insufficient to create a triable issue of fact that Defendant knew that he was waiting for longer than the few seconds he was observed, and/or that any wait time was uncompensated. The Court therefore granted Defendant’s motion as to the waiting time penalties claim. In addition, Plaintiff contended that "Home Depot’s failure to pay class members in accordance with Washington law was a deceptive act or practice in trade or commerce," that "Home Depot’s communications to the general public regarding its pay practices and the Homer Fund were deceptive acts or practices in commerce," and that Plaintiff "has been injured in his business or property by Home Depot’s wrongful conduct." Id . at *21-22. The Court agreed with Defendant that Plaintiff failed to present evidence of the kind of communications affecting the public interest that could support his CPA claim. Accordingly, the Court granted Defendant’s motion for summary judgement in its entirety. Peterson, et al. v. Nelnet Diversified Solutions, 2021 U.S. App. LEXIS 30273 (10th Cir. Oct. 8, 2021). Plaintiffs, a group of call-center representatives (“CCRs”), filed a collective action alleging that Defendant failed to pay them for time spent starting up their work computers and launching software before clocking-in for the beginning of their shift in violation of the FLSA. Following discovery, the parties filed cross-motions for summary judgment on whether the pre-shift activities were compensable work and, if so, whether the time the CCRs devoted to these activities was de minimis . The District Court concluded that the activities were integral and indispensable to the CCRs’ principal activities of servicing student loans by communicating and interacting with borrowers over the phone and by email and therefore constituted compensable work under the FLSA. Id . at *2. However, the District Court further determined that the CCRs’ time spent doing pre-shift work was subject to the de minimis doctrine. Thus the District Court granted Defendant’s motion and denied Plaintiffs’ motion. On appeal, the Tenth Circuit reversed and remanded. It found that the District Court incorrectly applied the three- factor de minimis doctrine. The Tenth Circuit explained that the District Court must balance three factors when "determining whether work time is de minimis and therefore not compensable,” including: (i) the practical administrative difficulty of recording the additional time; (ii) the size of the claim in the aggregate; and (iii) whether the employee performed the work on a regular basis. Id . at *19. The Tenth Circuit opined that Defendant had not established any particular practical administrative barrier to its ability to estimate the amount of time at issue in this case. Id . at *25. As to the size of the claim in the aggregate, the Tenth Circuit estimated that based on Plaintiffs’ allegations and the evidence in the record, for a CCR who worked for one full year, the aggregate claim would be approximately $125 or approximately $500 for the entire collective action period. Id . at *33. Finally, as to the third factor, the Tenth Circuit held that Plaintiffs performed the actions every workday for approximately the same amount of time. Accordingly, the Tenth Circuit concluded that the District Court erred in finding that the de minimis doctrine applied, and thereby it reversed and remanded the order granting Defendant’s motion for summary judgment.