Duane Morris Class Action Review - 2023 - Report - Page 231
the discovery process to demonstrate substantial disparities in the experiences of
collective action members and highlight the individualized inquiries that would preclude
proceeding 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 the
effectiveness of focusing arguments on the alleged applicable policies. The plaintiffs, a
group of crane operators working for the defendant, filed a class and collective action
alleging 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 court
granted conditional certification of a collective action including crane operators at three
of the defendant’s locations. After engaging in representative discovery, the defendant
filed a motion to decertify the collective action. As to the factual and employment
settings of the plaintiffs, the defendant argued that there were variations in pay policies
at each of the defendant’s locations, including the compensability of travel time, which
itself depended on varying lodging requirements, as well as the actual travel time
incurred and alleged off-the-clock work performed by employees. Id. at *15-16. While
the plaintiffs argued that the common policy at issue was the failure to pay for
categories of work when the defendant could not bill that time to customers, the court
found this an insufficient and legally irrelevant basis to bind the plaintiffs’ claims
together. Id. at *17. The court found insufficient evidence of a systematically applied
policy across all three locations, reasoning that the violations alleged occurred only
under certain circumstances that differed in each location. Id. at *17. Though the court
acknowledged similarities in the plaintiffs’ job duties, supervision, and salary, it found
deposition testimony from the plaintiffs supported its conclusion that the determination
of 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 would
require 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, of
the collective action members further cautioned against proceeding to trial as a
collective action. For these reasons, the court granted the defendant’s motion for
decertification.
Similarly, Phillips, et al. v. County Of Riverside, 2022 U.S. Dist. LEXIS 65166 (C.D. Cal.
Apr. 7, 2022), is an example of how the absence of a central, uniform policy can defeat
conditional certification. The plaintiffs, a group of social workers employed by the
defendant, filed a complaint alleging that the defendant’s systemic policy of
discouraging overtime and requiring pre-approval denied them overtime for
administrative tasks in violation of the FLSA. The parties stipulated to conditional
certification, and defendant subsequently filed a motion to decertify the collective action
after discovery. The court granted the defendant’s motion for decertification. While
acknowledging that the policy applied to all social workers, the defendant argued that
financial data showed that many social workers were paid overtime for administrative
tasks, and determining whether any social worker received overtime pay would require
an individualized inquiry. Id. at *12-13. Further, the court recognized that the variability
of overtime expenses over several years undercut the plaintiffs’ argument that the policy
had a chilling effect on reporting overtime. Id. at *13-14. Denials of overtime for
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Duane Morris Class Action Review – 2023
