18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 85 Aleman-Valdivia, et al. v. Top Dog Plumbing & Heating Corp. , 2021 U.S. Dist. LEXIS 189132 (E.D.N.Y. Sept. 30, 2021). Plaintiff, a heating and plumbing foreman, filed a collective action alleging that Defendants failed to pay minimum wages and overtime compensation in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court granted. Plaintiff contended that he regularly worked 62.5 hours per week and was not paid overtime compensation for hours worked over 40. Plaintiff further asserted that he was occasionally required to work emergency hours and could work overnight if necessary. Plaintiff alleged that he and at least 12 similarly-situated former and current employees were subject to the same policies and procedures. Plaintiff also claimed that Defendants were aware that non-exempt employees were working over 40 hours per week without overtime compensation and did nothing to rectify the situation. Plaintiff sought conditional certification of a collective action consisting of all "foremen, plumbers, laborers, backhoe operators, and drivers, who performed job duties similar to the duties" Plaintiff performed. Id . at *7. In support of his motion, Plaintiff offered his own affidavit in which he provided the names of other employees who were subject to Defendants’ policy in which it denied overtime compensation. Plaintiff also submitted Defendants’ "Employee Work Schedule," which included five weeks of pay records with “overtime” fields blank, indicating that no overtime compensation was paid to the employees. The Court found that Plaintiff met his requisite burden to show that he was similarly-situated to the other employees. The Court ruled that Plaintiff’s showing, including being able to name specific individuals and assert knowledge that these employees were not adequately paid, was sufficient at this stage of conditional certification. Defendants argued that "Plaintiff only advanced “conclusory allegations” as to the other potential collective action members and therefore did not establish the requisite factual nexus for conditional certification. Id . at *10. The Court rejected this argument. It reasoned that the allegations in the complaint and observations outlined in the affidavit were sufficient to make the factual showing necessary for conditional certification. Defendants also argued that Plaintiff was not similarly-situated to the collective action members because he worked as a foreman and the proposed collective action members worked in various other positions. However, the Court determined that Plaintiff sufficiently alleged that his main duties were manual work, which was similar to the other proposed collective action members. The Court explained that Plaintiff need only establish that he was similar to the members of the proposed collective action, and not identically situated. Accordingly, the Court determined that Plaintiff satisfied the burden under 29 U.S.C. § 216(b) to show that he was similarly-situated to the proposed members of the collective action. For these reasons, the Court granted Plaintiff’s motion or conditional certification of a collective action. Bonett, et al. v. Shawmut Woodworking & Supply, Inc., 2021 U.S. Dist. LEXIS 23368 (W.D.N.Y. Feb. 10, 2021). Plaintiff, an assistant project manager, filed a collective action alleging that Defendant misclassified him and others similarly-situated as exempt employees and thereby failed to pay overtime compensation in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court denied. Defendant recruited recent college graduates to join its Construction Management Skills Training ("CMST") program and gain "on-the-job" training. Id . at *2. The program lasted 36 months in which each participant spent 12 months working as an Assistant Project Manager, Assistant Superintendent, and Assistant Estimator. Defendant classified first-year participants as non-exempt employees under the FLSA and as exempt employees thereafter. Plaintiff asserted that he and other CMST participants regularly worked over 40 hours per week, and that in the second and third years of the program Defendant misclassified CMST participants as exempt employees when they performed no supervisory worker. Defendant contended that participants were properly classified as exempt from the overtime provisions of the FLSA based on their job duties and functions, because as CMST participants progressed through the program, they took on greater substantive job functions and performed tasks requiring more advanced knowledge, judgment, and discretion. Id . at *4-5. In support of his motion, Plaintiff offered his own declaration, which stated that he and other employees in their second and third year of Defendant’s CMST program regularly worked more than 40 hours per week without receiving overtime compensation, and that their duties were non-managerial in nature and always performed under direct supervision. Id . at *10. Plaintiff also asserted that others had the same experiences and were paid in the same manner. The Court concluded that Plaintiff failed to provide any evidence to show a factual nexus between Plaintiff’s personal experiences in the CMST program and the experience of other program participants. The Court opined that Plaintiff’s affidavit provided no details as to when and how he conversed with his co-workers about Defendant’s contested practices, or otherwise learned of these violations. The Court also found that the declaration did not lay out the source of Plaintiff’s knowledge about the job duties, hours worked, or