18th Annual Workplace Class Action Report - 2022 Edition

96 Annual Workplace Class Action Litigation Report: 2022 Edition claim specialist was highly individualized. The Court held that the evidence in the record demonstrated that Plaintiffs had varying experiences with regard to the amount of independent decision-making or judgement they actually had in their work experiences. The Court thus found that whether or not Plaintiffs should be classified as exempt under the administrative exemption to the FLSA would depend on evidence that was not common to the membership of the collective action. Accordingly, the Court ruled that although Plaintiffs shared various factual similarities, those facts were not "material to the disposition of their FLSA claims. Id . at *10. Accordingly, the Court granted Defendant’s motion for decertification of the collective action. The Court further found that Plaintiffs’ state law claims failed to meet the commonality requirement of Rule 23, as the claims would require individual inquiries into each employees’ specific experience. The Court ruled that whether or not each claim specialist would be able to bring a claim would depend on who they were managed or supervised by and whether that person prevented them from exercising discretion and using independent judgment. Therefore, the Court denied Plaintiffs’ motion for class certification. Jung, et al. v. Gina Group LLC, 2021 U.S. Dist. LEXIS 171200 (S.D.N.Y. Sept. 9, 2021). Plaintiff, a shoe designer, filed a collective action alleging that Defendant misclassified designers as independent contractors 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 contended that shoe designers were exempt from the FLSA based on the creative professional exemption. In support of her motion, Plaintiff offered her own declaration in which she outlined her working experience. Plaintiff asserted that she and other designers regularly worked over 40 hours per week, and she named five shoe designers with whom she discussed overtime issues. Plaintiff contended that during her work as a designer she was tasked with copying previously purchased shoes, and never utilized her own creativity or knowledge to make her own designs. Defendant submitted its own declarations discussing the creative process and duties of the designers to discredit Plaintiff’s argument that she did not fall under the creative professional exemption. The Court found that Plaintiff’s vague and conclusory statements failed to make the modest factual showing necessary for conditional certification. The Court determined that Plaintiff’s allegations and declaration did not provide evidence that she and other potential Plaintiffs were victims of a common scheme in violation of the FLSA. The Court reasoned that Plaintiff asserted that all designers were misclassified as exempt employees, but she failed to offer any evidence that all designers were treated the same as she was, as her declaration averred that all designers had different tasks and worked "independently" of each other. Id. at *7. Further, the Court held that Plaintiff did not offer any evidence from any other designer. Since Plaintiff failed to offer any corroborating declarations or affidavits of others, the Court could only rely on Plaintiff’s declarations, which it found insufficient to establish that Plaintiff and the proposed collective action members were similarly-situated. Accordingly, the Court denied Plaintiff’s motion for conditional certification of a collective action. Ke, et al. v. JR Sushi 2 Inc. , 2021 U.S. Dist. LEXIS 8045 (S.D.N.Y. Jan. 15, 2021). Plaintiff, a kitchen helper at a sushi restaurant, filed a collective action alleging that Defendant 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. In support of her motion, Plaintiff submitted an affidavit in which she averred that during the course of her employment, she worked from 11:00 a.m. to 11:00 p.m. six days per week and was paid a lump sum amount per week of $1,800 to $2,100. Plaintiff further attested that other workers suffered from the same common employment practices of the Defendants when they were not paid at the FLSA required overtime rate for hours worked in excess of 40 in a given week; and they received compensation in a monthly lump sum at a rate that was below both the federal and state minimum wage rates. Id . at *13. Plaintiff identified by name and position 14 additional workers who allegedly were subjected to Defendants’ alleged unlawful policies and procedures. The Court found that Plaintiff had made the requisite factual showing required for conditional certification. The Court noted that Plaintiff submitted a sworn affidavit asserting that she personally spoke with certain employees about their compensation, overheard conversations about her co-workers’ compensation, and/or witnessed managers providing pay slips to workers. The Court ruled that from Plaintiffs’ observations, Defendants’ employees including kitchen staff, sushi chefs, waitresses, packers, and delivery persons worked more than 40 hours per week and were compensated by means of a flat monthly wage arrangement that violated the minimum wage and overtime provisions of the FLSA. Id . at *20. Further, the Court reasoned that Plaintiff’s affidavit included details such as the names of the co-workers, their physical

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