Duane Morris Class Action Review - 2023 - Report - Page 227
their dates of employment. The court also opined that the declarations were
contradictory to the allegations in the complaint and deposition testimony, and failed to
provide specific examples of unpaid overtime or missed meal and rest breaks. As a
result, the court denied the plaintiffs’ motions.
Similarly, the case of Burris, et al. v. Charter Foods, Inc., 2022 U.S. Dist. LEXIS 76766
(E.D. Tenn. Mar. 23, 2022), is instructive on how an employer can use documentary
evidence to rebut allegations of a common policy or plan. The plaintiffs, who worked as
team members and shift leads for the defendant, filed a putative class and collective
action alleging that the defendant violated the FLSA, Pennsylvania’s Minimum Wage
Act, and Pennsylvania’s Wage Payment and Collection Law by failing to pay overtime
and by requiring employees to work off-the-clock. After discovery, which included three
depositions of the plaintiffs taken by the defendant, the plaintiffs filed a motion for
conditional certification supported with their own deposition testimony and time
adjustment records. Id. at *10-11. The court determined that the plaintiffs' deposition
testimony failed to demonstrate that they were forced or permitted to work off-the-clock
with management's knowledge, and they were unable to provide any concrete examples
of their time being modified to allow the defendant to avoid paying overtime. Id. at *1115. Additionally, the court noted that the time adjustment records submitted by the
plaintiffs did not support their contention of a policy or practice of manually reducing the
employees' worked hours to prevent the payment of overtime. Id. at *17-19. Many of the
instances of time being adjusted actually served to add hours to the employees' time,
and the records did not reflect adjustments that would significantly reduce employees'
hours. In contrast, the defendant offered evidence of a policy that prohibited off-theclock work. The court ultimately found the plaintiffs’ evidence insufficient to find an
FLSA-violating policy in place, and thus the plaintiffs failed to meet their burden to
establish that members of the proposed collective action were similarly-situated in the
absence of a common policy or plan that would support the plaintiffs’ claims. The
magistrate judge therefore recommended that the plaintiffs’ motion be denied, and the
court ultimately adopted and accepted the magistrate judge’s recommendation, denying
the motion for conditional certification in Burris, et al. v. Charter Foods, Inc., 2022 U.S.
Dist. LEXIS 76542 (E.D. Tenn. Apr. 27, 2022)
While some employer defendants are unable to fully defeat conditional certification, they
also may be able to substantially limit the scope of the parameters of the proposed
collective action. In Chapman, et al. v. Saber Healthcare Grp., LLC, L.P., 2022 U.S.
Dist. LEXIS 153602 (E.D. Va. Aug. 25, 2022), the plaintiffs, a group of certified nursing
assistants (CNAs) that worked in the defendants’ hospitals, filed a collective action
against the defendants alleging that they violated the FLSA by implementing policies
that required them to work off-the-clock and automatically deducted time for meal
periods regardless of whether such breaks were actually taken. The plaintiffs sought to
certify a nationwide collective action consisting of current and former hourly, nonexempt “patient care workers” at any facility within the past three years. Id. at *5. The
court determined that certification of a nationwide collective action was inappropriate on
the grounds that when declarations in support of a motion for conditional certification
come exclusively from a small, geographically homogenous group of declarants, and
the declarants lack personal knowledge about the policies or practices at other facilities,
226
© Duane Morris LLP 2023
Duane Morris Class Action Review – 2023
