Wage & Hour Class and Collective Action Review — 2023 - Report - Page 21
related litigation, reasoning that counsel had received no discovery in the instant case.
The court ultimately granted conditional certification of a nationwide collective action of
employees of the defendants who were paid under the same pay plan as the plaintiff
and received straight time for overtime in the prior three years.
Demonstrating the existence of a common policy, such as in Staley, et al. v. UMAR
Services, 2022 U.S. Dist. LEXIS 172181 (M.D.N.C. Sept. 23, 2022), generally results in
conditional certification. The plaintiff, a Direct Support Professional-Live In (DSP-LI)
caregiver, filed a collective action alleging that the defendant failed to pay overtime
compensation and for time spent working during time deemed as sleeping hours in
violation of the FLSA. The plaintiff filed a motion for conditional certification of a
collective action, and the court granted the motion. The plaintiff contended that the
defendant violated the FLSA by requiring the plaintiff and other similarly-situated
employees to be on call at the defendant's group homes at night while clocked-out,
which led to them not receiving overtime compensation on occasions in which they had
to work during that time. In support of her motion, the plaintiff submitted declarations
from nine caregivers that all stated that they were paid on an hourly basis, and that the
defendant had a policy that they clock-out at night but were required to remain at the
defendant's group homes and on-call during those clocked-out, uncompensated hours.
Id. at *7. The defendant asserted that the plaintiff was not similarly-situated to other
DSP-LIs. The court rejected this argument, and stated that the declarations showed that
the defendant did have the allegedly unlawful policy regarding sleep time for DSP-LIs at
its group homes, and the policy affected all DSPLIs. The court determined that any
differences in the plaintiff’s work schedule were not material differences, and regardless
of whether the plaintiff worked fewer hours, she was subject to the common policy of not
being paid for overnight hours. The court also rejected the defendant’s argument
regarding the plaintiff’s alleged misrepresentations on the basis that it would not resolve
merits arguments at the conditional certification stage. The court ruled that the plaintiff
made the requisite showing necessary to establish that she was similarly-situated to the
members of the proposed collective action for purposes of conditional certification. For
these reasons, the court granted the plaintiff’s motion.
Misclassification cases, in which plaintiffs most often content that they were
misclassified as exempt vs. hourly employees, or independent contractors vs.
employees, also spawn substantial FLSA litigation in 2022. The case of Zambrano, et
al. v. Strategic Delivery Solutions, LLC, 2022 U.S. Dist. LEXIS 146669 (S.D.N.Y. Aug.
16, 2022), demonstrates such an independent contractor misclassification case. The
plaintiffs, a group of delivery drivers of pharmaceutical products, filed a putative
collective and class action alleging that the defendants improperly classified them as
independent contractors and denied wages in violation of the FLSA and New York
Labor Law. As part of their claims, the plaintiffs alleged that they were paid on a perstop basis, regularly were not paid for time in excess of 40 hours, had improper
deductions made from their paychecks, and were forced to pay for certain expenses out
of pocket, resulting in wages less than the mandated minimum wage. The plaintiffs
moved to conditionally certify the collective action as to all drivers in New York and New
Jersey, which the defendants opposed. To support the motion for conditional
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Wage & Hour Class And Collective Action Review – 2023
