Wage & Hour Class and Collective Action Review — 2023 - Report - Page 22
certification, the four named plaintiffs offered only their declarations, which alleged
common job duties and responsibilities and conversations with numerous unnamed
other drivers to show that the members of the proposed collective action were similarlysituated. Id. at *15-16. While the defendants argued that the plaintiffs worked by
themselves and for themselves, and thus could not establish any other driver’s work
and methods, the court rejected this argument and found that the plaintiffs had
sufficiently set forth that they were subject to identical policies. Id. at *17-18. The court
also rejected the defendants’ argument that any collective action be limited to only the
two facilities in which the plaintiffs worked, reasoning that the affidavits representing a
limited number of towns could establish state-wide practices and the common policy of
misclassification.
Davis, et al. v. Charter Foods, Inc., 2022 U.S. Dist. LEXIS 195498 (E.D. Tenn. Mar. 21,
2022), concerns an exempt misclassification case that included some pre-certification
discovery, which some courts allow. In that case, the plaintiffs, a group of Assistant
General Managers (AGMs) for the defendants who owned over 300 quick-serve
restaurants in over 12 states, filed a collective and class action alleging that the
defendants misclassified them as exempt and did not pay them overtime in violation of
the FMLA, Pennsylvania’s Minimum Wage Act (PMWA), and Pennsylvania’s Wage
Payment and Collection Law (PWPCL). The plaintiffs filed a motion for conditional
certification under 29 U.S.C. § 216(b) and class certification under Rule 23, which the
court granted. In applying a “hybrid” standard in light of the amount of discovery that
had taken place, the court found that the plaintiffs satisfied their burden by establishing
that the exempt classification was a common policy applicable to all AGMs. It rejected
the defendants’ arguments that the plaintiffs lacked personal knowledge of any other
AGMs’ experiences. Id. at *14-15. The plaintiffs’ affidavits also similarly described job
duties that mirrored those of hourly employees. Id. at *17. Also important to the court
was the Rule 30(b)(6) testimony of the defendant that that there was a single AGM job
description and the expected duties for an AGM in a variety of differently-branded
restaurants were identical. Id. at *15-16. Finally, the court noted that the expected
workweek before and after the AGMs were classified as exempt was five ten-hour
shifts. Id. at *15. While the defendants argued that the collective action should be limited
to the geographic region in which they worked, the court relied on the centralized nature
of the defendants’ operations, including centralized ownership, human resources
functions, and payroll processing, to certify a collective action encompassing AGMs in
every potential state. Id. at *22. After granting conditional certification, the court also
held that all requirements for class certification were also met under Rule 23 as to the
PMWA and PWPCL claims. For these reasons, the court granted the plaintiffs’ motion.
The case of Looney, et al. v. Weco, Inc., 2022 U.S. Dist. LEXIS 167770 (E.D. Ark. Sept.
16. 2022), is demonstrative of how a single declaration can support an expansive FLSA
collective action. The plaintiff, an automotive field technician, filed a class and collective
action alleging that the defendant failed to pay field technicians for all time worked,
including time driving to and from worksites, ordering parts, or doing administrative
duties, in violation of the FLSA, the Arkansas Minimum Wage Act, and the Families First
Coronavirus Response Act. Id. The court, in granting the plaintiff’s motion, found
DM39529965.1
22
© Duane Morris LLP 2023
Wage & Hour Class And Collective Action Review – 2023
