Wage & Hour Class and Collective Action Review — 2023 - Report - Page 23
sufficient a single declaration from the plaintiff that described how he frequently worked
with other technicians who mentioned experiencing these same issues with the
defendant. Further, the court credited the plaintiff’s assertion that he regularly received,
in response to individual complaints, emails addressed to all field technicians employed
by the defendant written by the owner that specifically discussed and answered
questions regarding the alleged common payment plans and policies applicable to all of
the defendant’s field technicians. Id. at *11-12. Reasoning that the plaintiff’s personal
belief that the defendant’s policies were applied nationwide was pled with specific
knowledge, the court held that the single declaration demonstrated that plaintiff and the
members of the proposed collective action were similarly-situated. For these reasons,
the court conditionally certified the nationwide collective action. Id. at *13.
The case of Norris, et al. v. ProCore LLC, 2022 U.S. Dist. LEXIS 73889 (E.D.N.Y. Apr.
21, 2022), further demonstrates the ease with which plaintiffs can satisfy their burden at
the conditional certification stage. In that case, the plaintiffs, a group of hourly
employees working as security guards for the defendants, filed a collective and class
action alleging that they never received uninterrupted 30-minute meal periods, and
therefore did not receive pay in excess of 40 hours in violation of the FLSA and New
York’s Labor Law. The plaintiffs filed a motion for conditional certification of a collective
action consisting of all New York non-exempt security guards that worked for the
defendant. They offered two declarations in support of their motion. The plaintiffs’
declarations recounted conversations with two managers and 11 security guards, who
were named in the declarations, and asserted the same job duties and common policies
were applicable to all putative collective action members. Id. at *6-7. Though the
defendants challenged the lack of specificity in the declarations, the court rejected the
defendants’ arguments but conceded it was a close call as the declarations contained
mostly brief and vague assertions and references to conversations with others. Id. at *8.
Ultimately, the court found that each declaration corroborated the other and that the
plaintiffs satisfied their burden to show the existence of similarly-situated individuals, but
the failure to provide sufficient detail led the court to limit the collective action to the
individuals working in locations that the plaintiffs actually worked. Id. *10-11.
B.
Rulings Denying Or Substantially Limiting Conditional Certification
Though the plaintiffs’ bar has a substantial success rate in achieving conditional
certification, defendants successfully defeated motions for conditional certification in
2022 by focusing on the shortcomings of plaintiffs’ proffered evidence. Often, these
attacks focus on the limited personal knowledge of the declarants to establish the
applicability of common policies to the members of the proposed collective action.
Similarly, attacks by employers often focus on the inability of the proffered evidence to
establish that members of the collective action had common job duties, responsibilities,
or discretion. In some cases, employers successfully defeated conditional certification
motions by offering their own evidence to discredit the plaintiffs’ claims.
The case of Quint, et al. v. Vail Resorts, Inc., 2022 U.S. Dist. LEXIS 127106 (D. Colo.
Feb. 21, 2022), is a classic demonstration of how employers can defeat conditional
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© Duane Morris LLP 2023
Wage & Hour Class And Collective Action Review – 2023
