Duane Morris Class Action Review - 2023 - Report - Page 233
Other employers were able to successfully demonstrate the disparate job
responsibilities amongst collective action members to achieve decertification this past
year. In Write, et al. v. Waste Pro United States, 2022 U.S. Dist. LEXIS 25073 (S.D. Fla.
Jan. 11, 2022), plaintiffs, a group of waste disposal drivers for the defendants, filed a
putative collective action alleging that the defendants violated the FLSA by not paying a
true "day rate" for all hours worked in a given day, not compensating the plaintiff and
other opt-in plaintiffs for pre-shift and post-shift duties, automatically deducting a 30minute lunch break even if the plaintiff and others did not take a lunch break, and
"coupling the day rate with 'other forms of compensation'" including non-discretionary
and discretionary bonuses. Id. at *10-11. The court initially granted conditional
certification of a collective action including all current and former waste disposal drivers
employed by the defendants in Florida within the previous three years who were paid on
a job/day rate basis. After over 650 individuals opted-in to the litigation, and following
discovery, the defendants filed a motion to decertify the collective action on the grounds
that decertification was necessary due to the plaintiffs' disparate factual and
employment settings. The court agreed. It found credible the defendants’ arguments
that the plaintiffs did not hold the same job titles, worked in different locations and under
different decision-makers, worked during different time periods, and did not experience
the same alleged FLSA violations as the methods of compensation, including
entitlement to bonuses, varied. The plaintiffs conceded that the meal break claims
should be decertified, but proposed the creation of three sub-classes for the remaining
claims and requesting that the court allow "mini-trials" on a subclass-by-subclass basis.
The court granted the defendants' motion for decertification because the proposed subclasses and "mini-trials" would not be efficient or fair, and that there were too many
individualized inquiries needed to determine the plaintiffs' FLSA claims and the
defendants' defenses. Id.
Esparsen, et al. v. Ridley's Family Markets, Inc., 2022 U.S. Dist. LEXIS 67625 (D. Colo.
Apr. 12, 2022), is a good example of how an employer can defeat conditional
certification when the collective action has uniform job titles by demonstrating varied job
responsibilities. The plaintiff, who was previously employed as an assistant manager at
one of the defendant's stores, filed a putative FLSA collective action on behalf of all
other assistant managers similarly-situated, alleging that the defendant failed to pay
overtime. The court granted the plaintiff's motion for conditional certification and notice
was sent to the members of the collective action per 29 U.S.C. § 216(b). The defendant
subsequently moved to decertify the collective action following discovery. It asserted
that decertification was necessary because there is no typicality among the members of
the collective action, as the responsibilities of assistant managers varied depending on
the specific store and the division of responsibilities between store managers and
assistant managers at that store. Id. at *5. The defendant also pointed to deposition
testimony demonstrating the variation in different tasks like training employees, writing
schedules, and ordering product, among other tasks. Id. at *5-6. The plaintiff argued
that despite some variation in details, the assistant managers' jobs are unified by
common job descriptions, uniform pay and employment policies, and similar job duties,
and that the same legal theory applies to all of opt-ins’ claims. Id. at *6-7. The court held
that although evidence suggests that the assistant managers had the same title and
were subject to the same expectations and policies, their specific duties and
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Duane Morris Class Action Review – 2023
