Duane Morris Class Action Review - 2023 - Report - Page 228
it is inappropriate to certify a nationwide collective action. Id. at *18. In this case, all four
declarants' experiences were limited to a small number of facilities in Virginia, and none
of the declarations included specific allegations regarding unlawful practices at other
facilities. Id. Consequently, the small, homogenous sample of declarants was
insufficient to determine that patient care workers at the facilities identified in the
declarations were similarly-situated to patient care workers at any other facility. As a
result, the court granted conditional certification as to the four facilities in which the
declarants worked. Id. at *18-20. The court also found that the plaintiffs’ evidence was
insufficient to expand the collective action beyond CNAs. As the plaintiffs’ claims relied
fundamentally on the fact that the putative collective action members were regularly
unable to take meal breaks due to chronic understaffing and the inability to leave
patients without coverage, the court concluded that the collective action must be
composed only of those positions that faced such challenges. Id. at *20-21. All four of
the plaintiffs’ declarations came from CNAs, they provided little to no information about
the experiences of any individuals in other positions, and while some positions may
have involved direct patient care work, the job descriptions did not indicate how much
time was actually spent on such responsibilities or whether they carried over into break
periods. Id. For these reasons, the court denied the plaintiffs’ request to expand the
collective action beyond CNAs.
The case of Lucyk, et al. v. Materion Brush, Inc., 2022 U.S. Dist. LEXIS 137388 (N.D.
Ohio Aug. 2, 2022), is also a good example of how an attack on the personal knowledge
underpinning sweeping allegations can successfully limit a conditional certification
motion. In that case the plaintiffs, who were former and current employees at
Defendant's Elmore, Ohio facility, filed a collective action alleging that the company
violated the FLSA by not properly compensating them for the time they spent putting on
and taking off protective gear - donning and doffing - before and after their shifts. The
plaintiffs claimed that the process of donning and doffing, as well as the accompanying
walk to their work unit, took 15 to 20 minutes per shift, but they were only allotted 6
minutes for donning, resulting in 9 to 14 minutes of uncompensated work prior to each
shift. Id. at *3. A similar process was repeated at the end of each shift, with the plaintiffs
alleging that they were allotted 12 minutes but the process actually took 15 to 20
minutes, resulting in 3 to 8 minutes of uncompensated work after each shift. Id. at *3-4.
The plaintiffs claimed that this practice was not unique to the Elmore facility and that
similar policies were in place at the defendant's 16 other facilities nationwide, and they
moved to conditionally certify a nationwide collective action of all hourly employees who
were required to don and doff protective clothing or safety gear. Id. at *7. In support of
their motion, the plaintiffs submitted several declarations from employees at the Elmore
facility. The defendant asserted that the donning and doffing policy, which included the
allotment of 18 minutes of additional pay, had been in place at the Elmore facility since
1967, but that other facilities had unique policies depending on local factors, which was
substantiated by the defendant’s donning and doffing policy on which Plaintiffs relied. Id.
at *7-8. The court granted conditional certification. It opined that the plaintiffs had
provided a "modest factual showing" that other employees at the Elmore facility were
similarly-situated in regards to the alleged unpaid donning and doffing time. Id.
However, the court held that it could not certify a collective action for any other facility,
as the plaintiffs only had firsthand knowledge of the policies at the Elmore facility, and
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Duane Morris Class Action Review – 2023
