Duane Morris Class Action Review - 2023 - Report - Page 221
II.
Key Rulings In FLSA / Wage & Hour Class And Collective
Actions In 2022
The significant decisions in 2022 can be grouped into several categories, discussed
below, which include: (i) rulings granting conditional certification, even based on minimal
evidence; (ii) rulings denying or substantially limiting conditional certification based on
insufficient proof; (iii) rulings denying conditional certification based procedural
arguments; (iv) rulings decertifying collective actions; and (v) rulings denying
decertification.
A.
Rulings Granting Conditional Certification Motions, Even Based On
Minimal Evidence
Given the low evidentiary threshold, it is unsurprising that the majority of conditional
certification motions were granted in 2022. The evidentiary burden in those cases can
vary significantly depending on the procedural posture of the case. Most commonly, the
plaintiffs’ bar uses declarations from one or more individuals to establish through
personal knowledge the requisite showing that workers are “similarly-situated” for
purposes of 29 U.S.C. § 216(b).
Campo, et al. v. Granite Services International, 584 F. Supp. 3d 1337 (S.D.N.Y. 2022),
is a typical wage and hour FLSA lawsuit demonstrating how the plaintiffs’ bar uses basic
declarations to support conditional certification. The plaintiff filed a putative collective
action alleging that he and others that worked for the Defendants as Environment,
Health, and Safety (EHS) Advisor were paid at the same hourly rate for all hours
worked, including straight time for overtime hours. The plaintiff filed a motion to
conditionally certify his FLSA claim as a collective action as to all employees working for
the defendants nationwide who were paid straight time for overtime, excluding Texas
EHS Advisors that were subject to a different lawsuit. In support of the motion, the
plaintiff and three other employees submitted declarations alleging they were paid
straight time for overtime and had personal knowledge of others being paid similarly. Id.
at 1343. The court rejected the defendants’ arguments that the proposed collective
action concerned at least four different job positions subject to four different pay plans,
relying on the plaintiff’s concession that he only sought to represent employees under a
single pay plan, and uniformity of pay practice is sufficient to render the proposed
members of the collective action similarly-situated at the conditional certification stage.
Id. at 1347. The court also refused to apply a heightened standard in its similarlysituated analysis in light of the substantial discovery that plaintiff’s counsel received in
related litigation, reasoning that counsel had received no discovery in the instant case.
The court ultimately granted conditional certification of a nationwide collective action of
employees of the defendants who were paid under the same pay plan as the plaintiff
and received straight time for overtime in the prior three years.
Demonstrating the existence of a common policy, such as in Staley, et al. v. UMAR
Services, 2022 U.S. Dist. LEXIS 172181 (M.D.N.C. Sept. 23, 2022), generally results in
conditional certification. The plaintiff, a Direct Support Professional-Live In (DSP-LI)
caregiver, filed a collective action alleging that the defendant failed to pay overtime
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Duane Morris Class Action Review – 2023
