18th Annual Workplace Class Action Report - 2022 Edition

94 Annual Workplace Class Action Litigation Report: 2022 Edition arrangements and pay records practices with respect to their employment. In their affidavits, Plaintiffs averred that they were often paid less than the minimum wage rate, and when they worked more than 40 hours per week, they did not receive overtime pay. Plaintiffs also contended that they occasionally worked 24-hour shifts, during which they were required to stay overnight at the client’s home and assist the client as needed. Plaintiffs asserted that during the overtime shifts, they would be interrupted at least three to four times to serve the client and perform duties, including taking the client to the bathroom, fetching the client a glass of water, calming a distressed client, and cleaning the client’s bed, such that they did not get the required 8-hour overnight break. During meal breaks, Plaintiffs asserted that they would be on-call or frequently be interrupted by the client. During these overtime shifts, Defendant only paid aides for 13 hours out of their 24-hour shifts, leaving Plaintiffs uncompensated for the other 11 hours. Plaintiffs also asserted that they would spend more than 30% of their time at work directly performing household work, including cleaning, cooking, doing the laundry, making the bed, and taking out the trash. Id . at *10. Defendant argued that: (i) Plaintiffs failed to demonstrate that there were similarly-situated employees; and (ii) Plaintiffs were properly paid overtime. The Court agreed with Defendant that on the record presented, Plaintiffs failed to provide sufficient factual details to enable the Court to conclude that there were similarly-situated health aides. The Court ruled that although Plaintiffs set forth factual assertions in support of their individual wage & hour claims, they failed to made the requisite showing that the same was true for other home health aides. The Court reasoned that the affidavits did not identify any potentially similarly- situated employees by name, did not disclose how many employees Plaintiffs conversed with about their work, and provided no information regarding the timing or circumstances of any of the conversations. Id . at *14. The Court determined that without more factual details, it could not infer from Plaintiffs’ conclusory and repetitive allegations that similarly-situated employees potentially existed. Id . at *15. Accordingly, the Court denied Plaintiffs’ motion for conditional certification of a collective action. Hwangbo, et al. v. Kimganae, Inc., 2021 U.S. Dist. LEXIS 103993 (E.D.N.Y. June 1, 2021). Plaintiffs, a group of restaurant employees, filed a collective action alleging that Defendant failed to pay minimum wages and 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 sought conditional certification of a collective action consisting of all non-exempt employees employed by Defendants within the last six years. In support of their motion, Plaintiffs offered declarations from both tipped and non-tipped employees outlining their work experience based on personal observations, which alleged that they were paid below the minimum wage and was not paid time and a half for the overtime hours they worked. The declarations included details regarding the amount of hours worked in a week and the payment received for the work, which were all below the federal legal limit. The Court found that Plaintiffs made a sufficient showing that Defendant’s policy and procedures violated the FLSA and applied to both tipped and non-tipped employees. The Court held that Plaintiffs established that they were similarly-situated to waiters, as they submitted evidence that they were friends with them and were well aware of how the other waiters were paid. Plaintiffs also contended that cashiers were subject to the same policy and explained that they were friends with cashiers who had informed them of their pay rate, which was below the statutory minimum wage. The Court ruled that Plaintiffs’ details and evidence were sufficient to conclude that Defendant’s policy of paying employees less than the minimum wage and their illegal overtime policy extended to all waiters and cashiers. However, the Court determined that Plaintiffs did not provide any supporting evidence that other kitchen staff or other employees of Defendant were paid in the same manner. The Court concluded that Plaintiffs failed to provide adequate information from which it could determine whether kitchen workers, as a group, were subject to the same unlawful policies. Similarly, Plaintiffs’ vague, conclusory allegations that "non-managerial staff" or "all" employees were subject to the same policies did not rise to the level of a modest factual showing needed to include them in the proposed collective action. Id . at *16. Accordingly, the Court granted in part Plaintiffs’ motion for conditional certification of a collective action. Jaworski, et al. v. Integra Development Group, Inc., 2021 U.S. Dist. LEXIS 228031 (E.D.N.Y. Nov. 29, 2021). Plaintiffs, a group of construction workers, filed a class and collective action alleging that Defendant paid straight time for all hours worked over 40 hours in a given week in violation of the FLSA and the New York Labor Law. Plaintiffs filed a motion for conditional certification of a collective action as to the FLSA claims, and the Court granted the motion. In support of their motion, Plaintiffs offered their own declarations in which they averred that they were never paid overtime, that they have spoken to other workers who were also not paid overtime, and that there were approximately 11 other employees who performed the same job and were paid in