the FLSA. The plaintiff sought to conditionally certify a collective action and disseminatenotice to the members of the proposed collective action. The defendant brought amotion to compel arbitration based on the fact that the plaintiff had executed anIndependent Contractor Services Agreement that contained a valid and bindingarbitration clause. Id. at *3. While the plaintiff claimed he did not understand that hewould be obligated to arbitrate his dispute, the court rejected the plaintiff’s claimedignorance in light of his admission that he scrolled through the Agreement beforeexecuting it. Id. at *4. Given pending motions brought by the defendant against the twoexisting opt-ins to the lawsuit, who also were subject to valid arbitration agreements, thecourt granted the defendant’s motion to compel arbitration and denied the plaintiff’smotion seeking conditional certification and dissemination of the notice. Id. at *11.D.Rulings Decertifying Collective ActionsThe defendants that managed to decertify collective actions in 2022 did so in primarilytwo ways. First, the defendants were able to demonstrate the lack of a common policy,plan, or decision that applied to all opt-ins. Second, employers were able to leveragethe discovery process to demonstrate substantial disparities in the experiences ofcollective action members and highlight the individualized inquiries that would precludeproceeding as a collective action.The case of Repass, et al. v. TNT Crane & Rigging, Inc., 2022 U.S. Dist. LEXIS 129204(W.D. Tex. Jan. 10, 2022), is a landmark decision in 2022 that demonstrates theeffectiveness of focusing arguments on the alleged applicable policies. The plaintiffs, agroup of crane operators working for the defendant, filed a class and collective actionalleging that the defendant failed to compensate employees for drive time and off-theclock work in violation of the FLSA and the New Mexico Minimum Wage Act. The courtgranted conditional certification of a collective action including crane operators at threeof the defendant’s locations. After engaging in representative discovery, the defendantfiled a motion to decertify the collective action. As to the factual and employmentsettings of the plaintiffs, the defendant argued that there were variations in pay policiesat each of the defendant’s locations, including the compensability of travel time, whichitself depended on varying lodging requirements, as well as the actual travel timeincurred and alleged off-the-clock work performed by employees. Id. at *15-16. Whilethe plaintiffs argued that the common policy at issue was the failure to pay forcategories of work when the defendant could not bill that time to customers, the courtfound this an insufficient and legally irrelevant basis to bind the plaintiffs’ claimstogether. Id. at *17. The court found insufficient evidence of a systematically appliedpolicy across all three locations, reasoning that the violations alleged occurred onlyunder certain circumstances that differed in each location. Id. at *17. Though the courtacknowledged similarities in the plaintiffs’ job duties, supervision, and salary, it founddeposition testimony from the plaintiffs supported its conclusion that the determinationof whether any plaintiff suffered an FLSA violation required an individualized inquiry. Id.at *20-21. The court also noted that factual variances amongst the plaintiffs wouldrequire highly individualized analysis regarding the defendant’s affirmative defenses. Id.at *23-24. The assertion of class claims under New Mexico law for some, but not all, ofthe collective action members further cautioned against proceeding to trial as aDM39529965.130© Duane Morris LLP 2023Wage & Hour Class And Collective Action Review – 2023
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