Wage & Hour Class and Collective Action Review — 2023 - Report - Page 25
to present any evidence showing that she was similarly-situated to other proposed
collective action members. The court noted that the plaintiffs, typically through affidavits
or declarations, demonstrate how their individual situation was like that of other
proposed collective action members. Id. at *6. Here, the plaintiff merely alleged that
there were over 100 workers who were misclassified as independent contractors and
denied overtime pay. The court noted that the evidence the plaintiff provided was
specific only to her situation, such as her own contract, text messages, and pay stubs.
As a result, the court held that the plaintiff failed to provide even minimal evidence that
she and the proposed members of the collective action were similarly-situated. Id. at *6.
For these reasons, the court denied the plaintiff’s motion for conditional certification.
Shoop, et al. v. Justiceworks Youthcare, Inc., 2022 U.S. Dist. LEXIS 96323 (W.D. Penn.
May 31, 2022), demonstrates how an employer can offer evidence to rebut the
allegations in the plaintiffs’ declarations and demonstrate the individuality inherent in the
plaintiffs’ claims. The plaintiffs, family resource specialists (FSRs) that provided in-home
social services working for the defendant, filed a class and collective action alleging that
the defendant failed to pay FSRs for time traveling between client sites and
documentation time in violation of the FLSA and Pennsylvania’s Minimum Wage Act.
The plaintiffs filed a motion for conditional certification, which the court denied. In
support of their motion for conditional certification, the plaintiffs provided three affidavits
stating that they were owed overtime pay because they were directed not to record
documentation of time or travel time while traveling to clients. Id. at *7-8. The plaintiffs
also testified in depositions that they typically worked more than 40 hours per week, but
were not compensated for overtime work, but they could not provide specific examples
of unpaid overtime hours and pointed to manager instructions rather than any specific
policy or practice regarding overtime pay at the defendant. Id. at *8-10. Conversely, in
opposing conditional certification, the defendant provided evidence that it had policies in
place for overtime pay, that the plaintiffs acknowledged those policies, and that it paid
employees for documented overtime hours. Id. at *9-10. The court held that the plaintiffs
failed to provide any evidence beyond their own self-serving statements to support their
claim that they were not compensated for documentation or travel time. The court
reasoned that the evidence offered did not satisfy the modest burden under 29 U.S.C. §
216(b) because it did not demonstrate a sufficient factual nexus between the plaintiffs’
claims or between the plaintiffs and the rest of the members of the collective action. As
a result, the court determined that there was not enough evidence to support conditional
certification of a collective action under the FLSA.
Sutter Valley Hospitals, et al. v. Ward, 2022 U.S. Dist. LEXIS 126735 (E.D. Cal. July 15,
2022), demonstrates that the absence of a central policy can defeat conditional
certification. In that case the plaintiffs, surgical technicians employed by the defendant,
brought a putative class and collective action against the defendant, alleging that
defendant failed to pay them overtime and minimum wages in violation of the FLSA and
the California Labor Code (CLC). The court ordered discovery on class certification and
FLSA collective action certification, after which the plaintiffs filed a motion to certify the
class action under Rule 23 on their CLC claims and conditionally certify the collective
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© Duane Morris LLP 2023
Wage & Hour Class And Collective Action Review – 2023
