Wage & Hour Class and Collective Action Review — 2023 - Report - Page 26
action under 29 U.S.C. § 216(b). In their declarations in support of certification, the
plaintiffs claimed that they often worked overtime and missed meal and rest breaks
because the defendant’s facilities were understaffed, and that the defendant
consistently denied their requests for overtime payment. Id. at *24-26. The plaintiffs also
alleged that when they did not clock-out and accrued overtime, management would alter
their punch times, and that the plaintiffs did not have proper meal breaks because they
were required to stay on-call in case they were needed, and their breaks were
frequently interrupted. Id. The court denied the plaintiffs’ motion. The court found that
the plaintiffs' declarations were too vague and conclusory to imply an unlawful practice
that could satisfy the commonality requirement for class certification under Rule 23 or
establish that members of the collective action were similarly-situated under § 216(b).
The declarations were nearly identical and contained much of the same language, with
only minor differences based on the declarants' facility of employment and details of
their dates of employment. The court also opined that the declarations were
contradictory to the allegations in the complaint and deposition testimony, and failed to
provide specific examples of unpaid overtime or missed meal and rest breaks. As a
result, the court denied the plaintiffs’ motions.
Similarly, the case of Burris, et al. v. Charter Foods, Inc., 2022 U.S. Dist. LEXIS 76766
(E.D. Tenn. Mar. 23, 2022), is instructive on how an employer can use documentary
evidence to rebut allegations of a common policy or plan. The plaintiffs, who worked as
team members and shift leads for the defendant, filed a putative class and collective
action alleging that the defendant violated the FLSA, Pennsylvania’s Minimum Wage
Act, and Pennsylvania’s Wage Payment and Collection Law by failing to pay overtime
and by requiring employees to work off-the-clock. After discovery, which included three
depositions of the plaintiffs taken by the defendant, the plaintiffs filed a motion for
conditional certification supported with their own deposition testimony and time
adjustment records. Id. at *10-11. The court determined that the plaintiffs' deposition
testimony failed to demonstrate that they were forced or permitted to work off-the-clock
with management's knowledge, and they were unable to provide any concrete examples
of their time being modified to allow the defendant to avoid paying overtime. Id. at *1115. Additionally, the court noted that the time adjustment records submitted by the
plaintiffs did not support their contention of a policy or practice of manually reducing the
employees' worked hours to prevent the payment of overtime. Id. at *17-19. Many of the
instances of time being adjusted actually served to add hours to the employees' time,
and the records did not reflect adjustments that would significantly reduce employees'
hours. In contrast, the defendant offered evidence of a policy that prohibited off-theclock work. The court ultimately found the plaintiffs’ evidence insufficient to find an
FLSA-violating policy in place, and thus the plaintiffs failed to meet their burden to
establish that members of the proposed collective action were similarly-situated in the
absence of a common policy or plan that would support the plaintiffs’ claims. The
magistrate judge therefore recommended that the plaintiffs’ motion be denied, and the
court ultimately adopted and accepted the magistrate judge’s recommendation, denying
the motion for conditional certification in Burris, et al. v. Charter Foods, Inc., 2022 U.S.
Dist. LEXIS 76542 (E.D. Tenn. Apr. 27, 2022).
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Wage & Hour Class And Collective Action Review – 2023
