Duane Morris Class Action Review - 2023 - Report - Page 232
administrative tasks, the court reasoned, were dependent on individuals’ supervisors
and situations, and not department-wide policy, and the plaintiffs offered no expert
evidence supporting that the plaintiffs’ experiences were representative of a structural
issue. Id. at *14. As a result, the court held that any policy to deny overtime was not
uniformly implemented and decertified the collective action.
Attacking the absence of a central plan paid off for the employer in Avila, et al. v.
SLSCSO, Ltd., 2022 U.S. Dist. LEXIS 45423 (S.D. Tex. Mar. 15, 2022). In that case
plaintiffs, a group of laborers conducting hurricane relief work, alleged that they were
misclassified as independent contractors and paid a flat rate per day regardless of how
many hours they worked and denied overtime in violation of the FLSA. The defendant
was a construction management company that contracted with Puerto Rico’s housing
authority to restore homes that suffered hurricane damage in Puerto Rico, and had
executed near-identical subcontracting agreements with over 100 entities to perform the
restoration work. Under the subcontracting agreements, the defendant paid the
subcontractors a unit or line-item price, and each subcontractor was responsible for and
determined the workers’ wages. Id. at *4. The plaintiffs alleged that the defendant was a
joint employer with the subcontractors and therefore liable for any FLSA violations. The
court conditionally certified two collective actions of hurricane relief laborers that were
classified as independent contractors and received either a day rate or straight time
without overtime compensation. Id. at *8-9. After discovery, the defendant subsequently
moved to decertify the collective actions and for summary judgment on the plaintiffs’
claims. The court first dismissed the opt-ins who failed to respond to court-ordered
discovery or failed to timely file consent forms. Turning to the motion for decertification,
the court held that the plaintiffs presented evidence of FLSA violations arising out of
individual circumstances, and not a common plan, policy, or decision of the defendant
and its subcontractors to violate the FLSA. Id. at *20. The court opined that the
deposition testimony from multiple opt-ins demonstrated the varying job responsibilities
held by the plaintiffs, including one plaintiff’s testimony that he was a supervisor, and
the differing level of control that the defendant allegedly asserted over each jobsite. Id.
at *23-25. The court also found unpersuasive amalgamated discovery responses that
provided only an identical boilerplate response from each member of the collective
action as to how the defendant allegedly violated the FLSA. Id. at *27. Noting that the
defendant lacked control over subcontractors’ pay practices, the court found only a
common plan to build houses, not to violate the law. Though the defendant was
responsible for the quality of the work done, conducted inspections, and provided
workers with Samsung tablets to track project assignments, costs, and overall
production, the court found this insufficient to establish that the defendant controlled the
plaintiffs’ work. Id. at *40. The court also credited the defendant’s argument that the
plaintiffs performed a vast array of differing tasks at different job sites for different
subcontractors using different skills. In analyzing the defendant’s affirmative defenses,
the court determined that whether any plaintiff was paid overtime or whether the
defendant was a joint employer with any subcontractor would require individualized
inquiry. Id. at *31-33. Finding it unfair and inappropriate for the plaintiffs’ claims to
proceed as a collective action, the court granted the defendant’s motion for
decertification but denied summary judgment due to the material issue of fact as to
whether the defendant was a joint employer. Id. at *42.
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Duane Morris Class Action Review – 2023
