18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 91 tipped employees at both Remedy Diner and the Jax Inn Diner. Id . at *3. For these reasons, the Court granted Plaintiff’s motion for conditional certification of a collective action. Ford, et al. v. WSP USA, Inc., 2021 U.S. Dist. LEXIS 198549 (S.D.N.Y. Oct. 14, 2021). Plaintiff, a health, safety and environmental ("HSE") worker, filed a collective action alleging that Defendant failed to pay overtime compensation in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court granted in part. Plaintiff asserted that Defendant agreed with sub-contractors to provide HSE workers, which it hired as independent contractors and paid a day-rate, without providing overtime compensation for hours worked over 40 in a workweek. Quality Project Solutions Inc. ("QPS") was an HSE company, and one of the sub-contractors that worked with Defendant. Plaintiff sought conditional certification of a collective action consisting of HSE workers who received a flat day rate for each day worked, regardless of hours worked; were required or permitted to work overtime without receiving compensation; and worked for Defendant during the past three years as independent contractors and were never guaranteed a salary. Id . at *9. In support of his motion, Plaintiff offered the declaration of Richard M. Schreiber, which corroborated the allegations in Plaintiff’s complaint that QPS invoiced Defendant a flat day-rate for each HSE worker. Based on the allegations in the complaint and Schreiber’s declaration, the Court found that Plaintiff made the requisite showing required to show that he was similarly-situated to other QPS-hired HSE workers. The Court, however, found that Plaintiff failed to provide sufficient evidence that HSE staffing companies other than QPS implemented similar pay policies and paid a flat day-rate without providing overtime compensation. The Court therefore limited the scope of conditional certification to a collective action consisting of QPS-hired HSE workers. For these reasons, the Court granted in part Plaintiff’s motion for conditional certification of a collective action. Gedeon, et al. v. Valucare, Inc., 2021 U.S. Dist. LEXIS 67026 (E.D.N.Y. March 31, 2021). Plaintiff, a home health aide coordinator, filed a collective action alleging that Defendant failed to pay minimum wage and overtime compensation in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court granted. Defendant opposed the motion on the basis that Plaintiff failed to demonstrate she was similarly-situated to the other potential members of the collective action or that they were subject to a common unlawful policy or plan. Id. at *2. Plaintiff alleged that Defendant did not pay for on-call work, and with the inclusion of the on-call work to her regularly scheduled working hours, she regularly worked between 69.5 hours and 110.5 hours per week, depending on how many on-call shifts to which she was assigned. Plaintiff contended that she was paid a flat rate for on-call shifts, which did not equate to the required overtime rate of one and a half times her hourly compensation. In support of her motion, Plaintiff offered her own declaration, in which she outlined her allegations and also averred that she was aware that other home health aide coordinators were paid in the same manager, through her own personal observations and through conversations with Defendant’s President, Owner, and Administrator. Plaintiff identified seven other individuals currently or previously employed by Defendant as home health aide coordinators. The Court determined that through her complaint and supporting declaration, Plaintiff made the requisite showing necessary to demonstrate that she and other members of the proposed collective action were subjected to Defendant’s alleged unlawful policies. The Court also ruled that Plaintiff supplied sufficient detail to establish that she was similarly-situated to other potential members of the collective action. Accordingly, the Court concluded that Plaintiff’s allegations and supporting declarations were sufficient to show a factual nexus between Plaintiff’s situation and that of other home health aide coordinators such that they were similarly-situated victims of a common policy or plan to deny overtime compensation and minimum wages. Id. at *26. For these reasons, the Court granted Plaintiff’s motion for conditional certification of a collective action. Gillett, et al. v. Zara USA, Inc., 2021 U.S. Dist. LEXIS 132615 (S.D.N.Y. May 3, 2021). Plaintiffs, a group of hourly retail employees, filed a collective action alleging that Defendants 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. Plaintiffs contended that once an individual store’s target revenue was reached, hourly workers began to receive a commission bonus that was calculated based on the number of hours the employee worked during the relevant period (the "Commission Policy"). Id . at *4. Plaintiffs alleged that the commission compensation was not factored into their overtime rate when they worked more than 40 hours in a week in violation of the FLSA. Plaintiffs sought conditional certification of a collective action consisting of "all pay sales