18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 89 that they both were paid flat rates for all the hours they worked, including overtime, that they worked in the kitchen, and that other employees who worked in the kitchen worked more than 40 hours per week. The Court ruled that although Plaintiffs did not contend that they knew how much other employees were paid for those hours, Plaintiffs were not required to do so at this stage of the litigation. The Court opined that it was a plausible inference that if Plaintiffs were not paid overtime compensation, other employees were also subject to the same unlawful policy. For these reasons, the Court granted Plaintiffs’ motion for conditional certification of a collective action. Curry, et al. v. P&G Auditors & Consultants, LLC, 2021 U.S. Dist. LEXIS 111137 (S.D.N.Y. June 14, 2021). Plaintiffs, a group of auditors, filed a class and collective action alleging that Defendants misclassified them as independent contractors and thereby failed to pay them overtime compensation in violation of the FLSA and the New York Labor Law. 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 workers who were employed by Defendants as AMLs, TLs, and QAs who worked on Project 1/Lookback 2 and Project 2/Lookback 2. In support of their motion, Plaintiffs submitted declarations that stated that Defendants required them to work through a limited liability company, which was the entity with whom the Defendants entered into a master services agreement (“MSA”) and transmitted payment to the auditors. Plaintiffs asserted that Defendants treated all auditors in the same manner and required them to submit hours and be paid through an online portal. The declarations further averred that Plaintiffs and the other members of the proposed collective action performed the same type of work at the same facility, all had to work over 40 hours per week, and all were not paid overtime compensation. Plaintiffs also provide examples of their own observations as well as the names of other co-workers who experienced the same working conditions. Defendants argued that Plaintiffs were hired as independent contractor and therefore were not subject the FLSA’s requirements of being paid overtime compensation. However, the Court declined to address whether Plaintiffs were properly designated as independent contractors at this stage of conditional certification, as it went to the merits of Plaintiffs’ claims. The Court held that Plaintiffs’ declarations met the requisite showing required at the conditional certification stage to demonstrate that they were similarly-situated to the members of the proposed collective action. For these reasons, the Court granted Plaintiffs’ motion for conditional certification of a collective action. DeSimone, et al. v. TIAA Bank, FSB, 2021 U.S. Dist. LEXIS 174545 (S.D.N.Y. Sept. 14, 2021). Plaintiffs, a group of retail loan officers (“RLOs”), filed a collective action alleging that Defendant failed to pay them overtime compensation in violation of the FLSA. Plaintiffs filed a motion for conditional certification of a collective action, which the Court granted in part. Plaintiffs were employed in various states and performed the functions of originating and producing residential mortgage loans for Defendant. Plaintiffs alleged that Defendant misclassified them as exempt employees under the outside sales exemption to the FLSA. In support of their motion, Plaintiffs submitted Defendant’s 2016 and 2018 compensation plans that demonstrated that all RLOs were subject to the same compensation scheme, i.e ., paid on a commission basis and were exempt from overtime compensation. Id . at *30. Plaintiffs also submitted declarations as well as declarations from opt-in Plaintiffs, which averred that they performed duties of soliciting clients and guiding them through the loan process, and that the "vast majority" of this work was performed by phone or computer either at home, at a branch office, or at "some other fixed location." Id . at *31. The Court held that Plaintiffs were sufficiently similarly-situated to grant conditional certification. The Court reasoned that the declarations and allegations showed that all RLOs were subject to the same pay police, were all overtime exempt, all worked over 40 hours per week, and all performed the “vast majority” of their work on the phone and computer. Id. The Court concluded that Plaintiffs met their burden requirement at the first stage of conditional certification. The Court, however, found that Branch Sales Managers and Retail Sales Managers should not be included in the collective action because Plaintiffs did not present any evidence that potential Plaintiffs who worked in those positions were similarly-situated. Accordingly, the Court granted Plaintiffs’ motion for conditional certification of a collective action with those limitations. Dieffenbauch, et al. v. Rhinehart R.R. Construction , 2021 U.S. Dist. LEXIS 20109 (N.D.N.Y. Feb. 3, 2021). Plaintiffs, a group of railroad employees, filed a collective action alleging that Defendant failed to pay overtime compensation in violation of the FLSA. Plaintiffs previously had filed a motion for conditional certification of a collective action, which the Court granted. Following discovery, Defendant filed a motion to decertify the