Duane Morris Class Action Review - 2023 - Report - Page 235
collective action. Following discovery, the plaintiffs moved for class certification and
collective action certification while the defendant filed a motion for decertification. The
plaintiffs argued that they were similarly-situated because they were subject to a
uniform practice, specifically the defendant’s failure to compensate FIs for all overtime
worked. Id. The plaintiffs argued that this violation was widespread across the
defendant’s workforce, and across geographic regions and managers, due to a common
practice of over-assignment of work and minimum performance expectations that
encouraged or pressured the plaintiffs to under-report their hours. Id. at *13-14. In
addition, the plaintiffs claimed that they shared the same job position and duties, and
that they were subject to the same guidelines, directives, centralized assignment
strategies, and minimum performance expectations. Id. The defendant argued that the
plaintiffs' factual and employment settings varied widely and were therefore unfit for
collective action adjudication, citing the fact that the plaintiffs worked remotely in more
than 32 different states and were supervised by 111 different field managers (FMs). Id.
at *14-15. The defendant also argued that the plaintiffs had failed to establish the
existence of an unlawful policy, as the plaintiffs had consistently testified that no FM had
instructed them to under-report their hours or work hours without reporting the time. Id.
at *15-16. As a result, the defendant further argued that it had no reason to believe that
the FIs were working off-the-clock, falsifying their timesheets, or under-reporting their
hours, especially as each FI had acknowledged the policy forbidding those actions. Id.
The court concluded that the material terms of the plaintiffs’ employment, including the
policies and practices to which they allegedly were uniformly subjected, weighed in
favor of finding the plaintiffs similarly-situated. The court held that, although the plaintiffs
worked in different geographic regions under the supervision of different FMs, they all
held the same job title and worked under the same general supervision hierarchy,
thereby rejecting the defendant’s attempt to establish individual differences. Id. at *1718. The court further observed that the plaintiffs were all classified as non-exempt
employees and were subject to the same pay provisions and performance standards
and, although working in far-removed and disparate locations, provided consistent and
corroborating statements attesting to the defendant’s uniform practice of pressuring
them to engage in off-the-clock work and under-report their overtime hours. Id. As a
result, the court held that the plaintiffs had provided sufficient evidence of a common
policy or practice, as well as of a general atmosphere of pressure to under-report hours,
to establish that they were similarly-situated for the purposes of the FLSA collective
action. Id. The defendant’s defenses, the court determined, could be presented broadly
and defeat liability on a collective-wide basis, further demonstrating no reason for
decertification. As a result, the court denied defendant’s motion to decertify the FLSA
collective action. The court also determined that class certification under Rule 23 was
appropriate for the same reasons.
In Diaz, et al. v. N.Y. Paving Inc., 2022 U.S. Dist. LEXIS 179450 (S.D.N.Y. Sept. 30,
2022), the employer was unable to defeat the common policy established by the
plaintiffs to maintain certification as a collective action. The plaintiffs, a group of pavers,
filed a class and collective action alleging that the defendant failed to pay straight time
wages and overtime compensation in violation of the FLSA and the New York Labor
Law. The court previously had granted the plaintiffs’ motion for conditional certification
of the FLSA collective action. Following discovery, the defendant filed a motion to
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Duane Morris Class Action Review – 2023
