Wage & Hour Class and Collective Action Review — 2023 - Report - Page 30
the FLSA. The plaintiff sought to conditionally certify a collective action and disseminate
notice to the members of the proposed collective action. The defendant brought a
motion to compel arbitration based on the fact that the plaintiff had executed an
Independent Contractor Services Agreement that contained a valid and binding
arbitration clause. Id. at *3. While the plaintiff claimed he did not understand that he
would be obligated to arbitrate his dispute, the court rejected the plaintiff’s claimed
ignorance in light of his admission that he scrolled through the Agreement before
executing it. Id. at *4. Given pending motions brought by the defendant against the two
existing opt-ins to the lawsuit, who also were subject to valid arbitration agreements, the
court granted the defendant’s motion to compel arbitration and denied the plaintiff’s
motion seeking conditional certification and dissemination of the notice. Id. at *11.
D.
Rulings Decertifying Collective Actions
The defendants that managed to decertify collective actions in 2022 did so in primarily
two ways. First, the defendants were able to demonstrate the lack of a common policy,
plan, or decision that applied to all opt-ins. Second, employers were able to leverage
the discovery process to demonstrate substantial disparities in the experiences of
collective action members and highlight the individualized inquiries that would preclude
proceeding as a collective action.
The case of Repass, et al. v. TNT Crane & Rigging, Inc., 2022 U.S. Dist. LEXIS 129204
(W.D. Tex. Jan. 10, 2022), is a landmark decision in 2022 that demonstrates the
effectiveness of focusing arguments on the alleged applicable policies. The plaintiffs, a
group of crane operators working for the defendant, filed a class and collective action
alleging that the defendant failed to compensate employees for drive time and off-theclock work in violation of the FLSA and the New Mexico Minimum Wage Act. The court
granted conditional certification of a collective action including crane operators at three
of the defendant’s locations. After engaging in representative discovery, the defendant
filed a motion to decertify the collective action. As to the factual and employment
settings of the plaintiffs, the defendant argued that there were variations in pay policies
at each of the defendant’s locations, including the compensability of travel time, which
itself depended on varying lodging requirements, as well as the actual travel time
incurred and alleged off-the-clock work performed by employees. Id. at *15-16. While
the plaintiffs argued that the common policy at issue was the failure to pay for
categories of work when the defendant could not bill that time to customers, the court
found this an insufficient and legally irrelevant basis to bind the plaintiffs’ claims
together. Id. at *17. The court found insufficient evidence of a systematically applied
policy across all three locations, reasoning that the violations alleged occurred only
under certain circumstances that differed in each location. Id. at *17. Though the court
acknowledged similarities in the plaintiffs’ job duties, supervision, and salary, it found
deposition testimony from the plaintiffs supported its conclusion that the determination
of whether any plaintiff suffered an FLSA violation required an individualized inquiry. Id.
at *20-21. The court also noted that factual variances amongst the plaintiffs would
require highly individualized analysis regarding the defendant’s affirmative defenses. Id.
at *23-24. The assertion of class claims under New Mexico law for some, but not all, of
the collective action members further cautioned against proceeding to trial as a
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© Duane Morris LLP 2023
Wage & Hour Class And Collective Action Review – 2023
