Wage & Hour Class and Collective Action Review — 2023 - Report - Page 24
certification of an expansive and broadly-defined collective action. The plaintiffs, a group
of seasonal workers at one of the defendant’s resorts, filed a class and collective action
alleging that the defendant failed to pay hourly employees for travel time, time spent
donning and doffing uniforms and equipment, and training time in violation of the FLSA
and various state laws. Id. at *5. The plaintiffs filed a motion for conditional certification
seeking to conditionally certify a collective action of approximately 36,000 hourly
employees of the defendant, excluding any administrative, executive, and professional
employees. Id. at *4. Though 18 individuals filed opt-in consents since the filing of the
litigation, the plaintiffs offered only three declarations in support of their motion. The
magistrate judge agreed with the defendant’s argument that the plaintiffs failed to show
the putative plaintiffs were subject to a single decision, policy, or plan, and credited the
defendant’s argument that the method and time spent traveling from parking lots to the
worksites varied substantially across its properties. Id. at *14. Further, the defendant
successfully argued that the cell phone requirements, training times, and equipment
used varied widely amongst its employees, as did their job descriptions and
responsibilities. Therefore, the court reasoned that the plaintiffs failed to demonstrate
that the members of the proposed collective action were similarly-situated. Id. at *15-16.
The court recommended denying the plaintiffs’ motion on the grounds that it would be
manifestly unjust to conditionally certify the collective action, though it noted the
possibility that a more narrowly-tailored subset of positions might pass muster. Id. at
*17. The court ultimately adopted the magistrate judge’s finding and recommendation in
Quint, et al. v. Vail Resorts, Inc., 2022 U.S. Dist. LEXIS 127778 (D. Colo. June 23,
2022).
In another critical decision, the court in Lincoln, et al. v. Apex Human, 2022 U.S. Dist.
LEXIS 175714 (E.D. Penn. Sept. 28, 2022), recognized that the plaintiff’s limited
evidence in support of conditional certification failed to establish that any other workers
were similarly-situated. The plaintiff, a nurse, filed a class and collective action alleging
that defendants misclassified registered nurses, licensed practical nurses, and other
providers as independent contractors, and thereby denied them overtime pay and other
employee benefits in violation of the FLSA and the Pennsylvania Minimum Wage Act.
Id. at *1. The plaintiff moved for conditional certification of a collective action, and the
court denied the motion. The court explained that case law authority in the Third Circuit
has developed a two-tiered test to determine whether employees are similarly-situated
for purposes of allowing an FLSA representative action to proceed. Id. at *2. First, the
court conducts a preliminary inquiry into whether employees are similarly-situated. Id. at
*2-4. The plaintiff argued that conditional certification of a collective action was
appropriate for three reasons, including: (i) all current workers are subject to the
defendants’ uniform policy of failing to pay overtime; (ii) all former workers were subject
to the defendants’ uniform policy of failing to pay overtime; and (iii) the plaintiff met the
lax standard of showing that workers were similarly, not identically, situated. Id. at *4-5.
To support her arguments, the plaintiff offered three types of evidence: (i) a signed
independent contractor agreement; (ii) text messages between the plaintiff and one
individual defendant; and (iii) one pay stub from 2019 and four pay stubs from 2020
showing that taxes were not withheld from her pay. The court held that the plaintiff failed
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© Duane Morris LLP 2023
Wage & Hour Class And Collective Action Review – 2023
