Wage & Hour Class and Collective Action Review — 2023 - Report - Page 28
minutes, resulting in 3 to 8 minutes of uncompensated work after each shift. Id. at *3-4.
The plaintiffs claimed that this practice was not unique to the Elmore facility and that
similar policies were in place at the defendant's 16 other facilities nationwide, and they
moved to conditionally certify a nationwide collective action of all hourly employees who
were required to don and doff protective clothing or safety gear. Id. at *7. In support of
their motion, the plaintiffs submitted several declarations from employees at the Elmore
facility. The defendant asserted that the donning and doffing policy, which included the
allotment of 18 minutes of additional pay, had been in place at the Elmore facility since
1967, but that other facilities had unique policies depending on local factors, which was
substantiated by the defendant’s donning and doffing policy on which Plaintiffs relied. Id.
at *7-8. The court granted conditional certification. It opined that the plaintiffs had
provided a "modest factual showing" that other employees at the Elmore facility were
similarly-situated in regards to the alleged unpaid donning and doffing time. Id.
However, the court held that it could not certify a collective action for any other facility,
as the plaintiffs only had firsthand knowledge of the policies at the Elmore facility, and
plaintiffs did not offer any viable proof as to alleged FLSA violations across
geographically diverse work environments with different job responsibilities and different
management.
C.
Rulings Denying Conditional Certification Based On Procedural Defenses
Procedural defenses, when available, are a powerful tool to successfully defeat or
substantially limit conditional certification of a collective action. These defenses can
include challenging jurisdiction or forcing the plaintiffs to arbitrate.
The decision in Bristol-Myers Squibb Co., et al. v. Superior Court Of California, 137 S.
Ct. 1773, 1781 (2017), has resulted in FLSA defendants challenging jurisdiction to limit
the scope of collective actions brought under the FLSA. Currently, The Third, Sixth, and
Eight Circuits have held that courts lack jurisdiction over the forum’s non-resident
plaintiffs in FLSA collective actions if general or specific jurisdiction cannot be
established over the defendant under the principles recognized by the U.S. Supreme
Court in Bristol-Myers Squibb.
Speight, et al. v. Labor Source, LLC, 2022 U.S. Dist. LEXIS 71218 (E.D.N.C. Apr. 19,
2022), is one of the hallmark defendant-friendly decisions of 2022 limiting the scope of
collective actions on jurisdictional grounds. In that case the plaintiff, an employee of a
staffing agency defendant, alleged violations of the FLSA and North Carolina Wage and
Hour Act due to the defendant’s improper travel and lodging deductions and inaccurate
reporting of hours, which resulted in the alleged failure to pay minimum wage and
overtime. The plaintiff filed a motion to conditionally certify a collective action under the
FLSA of all similarly-situated non-exempt workers across the country, and the
defendant filed a partial motion to dismiss for lack of personal jurisdiction. Id. at *1. The
court, after extensively considering Bristol-Myers, its progeny, the Federal Rules of Civil
Procedure and the U.S. Constitution, concluded that jurisdiction over the FLSA claims of
individuals residing outside of North Carolina required general or specific jurisdiction
over the defendant. Id. at *24. Finding that the workers of the proposed nationwide
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Wage & Hour Class And Collective Action Review – 2023
