18th Annual Workplace Class Action Report - 2022 Edition

84 Annual Workplace Class Action Litigation Report: 2022 Edition putative class members had joined the lawsuit. The Court rejected this argument. It ruled that there was no conflict between Plaintiff and other servers, who would have the same interest in recovering unpaid wages from Defendants. Id . at *27. Further, the Court determined that Plaintiff’s counsel was well-qualified and capable of litigating this matter. Id . In addressing the Rule 23(b) predominance requirement, the Court found that Plaintiff sufficiently alleged that common issues predominated over individual issues. The Court reasoned that the same evidence would establish what written notice regarding tips provided putative class members, whether the tip pool in which the putative class members were participating was valid, and whether managerial employees participated in the tip pool. Finally, the Court held that Plaintiff met the superiority requirement, as there was no pending litigation on the same issues, and the individual claims of class members should be too small to warrant individual litigation. Accordingly, the Court granted Plaintiff’s motion for class certification. Pearl, et al. v. Clearlink Partners, LLC , 2021 U.S. Dist. LEXIS 121168 (D. Mass. June 29, 2021). Plaintiff, a Utilization Review Employee (“URE”), filed a collective action alleging that Defendant, a professional services staffing firm, failed to pay overtime compensation in violation of the FLSA. Plaintiffs filed a motion for conditional certification of a collective action, which the Court granted. In support of her motion, Plaintiff offered affidavits of former UREs detailing their daily duties and stating that they: (i) were told not to report work in excess of 40 hours per week; (ii) had informed their supervisors that they were routinely working overtime to complete their assigned caseloads; and (iii) were never paid overtime compensation. Id . at *3-4. Defendant opposed the motion for conditional certification on the grounds that: (i) the employees in the putative collective action were not similarly-situated to the named Plaintiff because they had varying job titles, duties, training, exemption statuses and compensation arrangements; (ii) collective-wide treatment would be inefficient as a result of the individualized determinations required by the claims raised; and (iii) there no evidence that others wished to opt- in to the collective action. Id . at *4. The Court reasoned that although the job titles varied between potential opt- in Plaintiffs, the actual job descriptions and duties were similar, requiring duties to healthcare request reviews using standardized criteria. Further, the Court determined that all members of the proposed collective action received similar training on Defendant’s policies and procedures. For these reasons, the Court determined that Plaintiff met her burden at the conditional certification stage, and it granted Plaintiff’s motion. (ii) Second Circuit Abdulzalieva, et al. v. Advanced Domino, 2021 U.S. Dist. LEXIS 132615 (E.D.N.Y. April 27, 2021). Plaintiffs, two grocery store cashiers, filed a collective action alleging that Defendant failed to pay overtime compensation in violation of the FLSA. Plaintiffs filed a motion for conditional certification of a collective action, which the Court granted. Plaintiffs sought conditional certification of a collective action consisting of all non-managerial employees at the supermarket who did not receive overtime compensation, including cashiers, cooks, deli workers, "truck unloaders," "shelf stockers," and the staffs of the meat department, fish department, and bakery department. Id . at *6. In support of their motion, Plaintiffs offered their own declarations, and handwritten employee time records. Plaintiffs asserted that, when they worked as cashiers, Defendants used the same payment method of paying a flat hourly rate, deducting a half-hour’s wages for an unused lunch break, and then providing a paystub and check for less than 40 hours of work and paying the rest of the hours in cash rather than paying overtime compensation. Id . at *7. Plaintiff Abdulzalieva further stated that she personally overserved that another cashier, Ludmilla Podgornova, did not receive overtime compensation. Plaintiff Daineka also alleged that she spoke with Podgornova, who stated that Daineka "should not expect overtime pay for [her] long hours, as no cashiers received proper overtime and no cashiers received an uninterrupted lunch period." Id . at *8. Plaintiffs also related several other conversations with non-managerial employees who stated that they were paid in the same manner and did not receive overtime compensation. Plaintiff Abdulzalieva also provided evidence that in her office work with Defendant, she obtained access to the list of employees, the hours they worked, and the compensation they received, handed envelopes with the paystubs, checks, and cash payments, and that she knew several employees in several departments who she observed receiving the alleged unlawful payments. The Court found that at the first stage of conditional certification, Plaintiffs’ evidence was sufficient to demonstrate that they and the other non-managerial employees were victims of a common policy or plan that violated the FLSA. For these reasons, the Court granted Plaintiffs’ motion for conditional certification of a collective action.