Wage & Hour Class and Collective Action Review — 2023 - Report - Page 27
While some employer defendants are unable to fully defeat conditional certification, they
also may be able to substantially limit the scope of the parameters of the proposed
collective action. In Chapman, et al. v. Saber Healthcare Grp., LLC, L.P., 2022 U.S.
Dist. LEXIS 153602 (E.D. Va. Aug. 25, 2022), the plaintiffs, a group of certified nursing
assistants (CNAs) that worked in the defendants’ hospitals, filed a collective action
against the defendants alleging that they violated the FLSA by implementing policies
that required them to work off-the-clock and automatically deducted time for meal
periods regardless of whether such breaks were actually taken. The plaintiffs sought to
certify a nationwide collective action consisting of current and former hourly, nonexempt “patient care workers” at any facility within the past three years. Id. at *5. The
court determined that certification of a nationwide collective action was inappropriate on
the grounds that when declarations in support of a motion for conditional certification
come exclusively from a small, geographically homogenous group of declarants, and
the declarants lack personal knowledge about the policies or practices at other facilities,
it is inappropriate to certify a nationwide collective action. Id. at *18. In this case, all four
declarants' experiences were limited to a small number of facilities in Virginia, and none
of the declarations included specific allegations regarding unlawful practices at other
facilities. Id. Consequently, the small, homogenous sample of declarants was
insufficient to determine that patient care workers at the facilities identified in the
declarations were similarly-situated to patient care workers at any other facility. As a
result, the court granted conditional certification as to the four facilities in which the
declarants worked. Id. at *18-20. The court also found that the plaintiffs’ evidence was
insufficient to expand the collective action beyond CNAs. As the plaintiffs’ claims relied
fundamentally on the fact that the putative collective action members were regularly
unable to take meal breaks due to chronic understaffing and the inability to leave
patients without coverage, the court concluded that the collective action must be
composed only of those positions that faced such challenges. Id. at *20-21. All four of
the plaintiffs’ declarations came from CNAs, they provided little to no information about
the experiences of any individuals in other positions, and while some positions may
have involved direct patient care work, the job descriptions did not indicate how much
time was actually spent on such responsibilities or whether they carried over into break
periods. Id. For these reasons, the court denied the plaintiffs’ request to expand the
collective action beyond CNAs.
The case of Lucyk, et al. v. Materion Brush, Inc., 2022 U.S. Dist. LEXIS 137388 (N.D.
Ohio Aug. 2, 2022), is also a good example of how an attack on the personal knowledge
underpinning sweeping allegations can successfully limit a conditional certification
motion. In that case the plaintiffs, who were former and current employees at
defendant's Elmore, Ohio facility, filed a collective action alleging that the company
violated the FLSA by not properly compensating them for the time they spent putting on
and taking off protective gear - donning and doffing - before and after their shifts. The
plaintiffs claimed that the process of donning and doffing, as well as the accompanying
walk to their work unit, took 15 to 20 minutes per shift, but they were only allotted 6
minutes for donning, resulting in 9 to 14 minutes of uncompensated work prior to each
shift. Id. at *3. A similar process was repeated at the end of each shift, with the plaintiffs
alleging that they were allotted 12 minutes but the process actually took 15 to 20
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© Duane Morris LLP 2023
Wage & Hour Class And Collective Action Review – 2023
