Wage & Hour Class and Collective Action Review — 2023 - Report - Page 31
collective action. For these reasons, the court granted the defendant’s motion for
decertification.
Similarly, Phillips, et al. v. County Of Riverside, 2022 U.S. Dist. LEXIS 65166 (C.D. Cal.
Apr. 7, 2022), is an example of how the absence of a central, uniform policy can defeat
conditional certification. The plaintiffs, a group of social workers employed by the
defendant, filed a complaint alleging that the defendant’s systemic policy of
discouraging overtime and requiring pre-approval denied them overtime for
administrative tasks in violation of the FLSA. The parties stipulated to conditional
certification, and defendant subsequently filed a motion to decertify the collective action
after discovery. The court granted the defendant’s motion for decertification. While
acknowledging that the policy applied to all social workers, the defendant argued that
financial data showed that many social workers were paid overtime for administrative
tasks, and determining whether any social worker received overtime pay would require
an individualized inquiry. Id. at *12-13. Further, the court recognized that the variability
of overtime expenses over several years undercut the plaintiffs’ argument that the policy
had a chilling effect on reporting overtime. Id. at *13-14. Denials of overtime for
administrative tasks, the court reasoned, were dependent on individuals’ supervisors
and situations, and not department-wide policy, and the plaintiffs offered no expert
evidence supporting that the plaintiffs’ experiences were representative of a structural
issue. Id. at *14. As a result, the court held that any policy to deny overtime was not
uniformly implemented and decertified the collective action.
Attacking the absence of a central plan paid off for the employer in Avila, et al. v.
SLSCSO, Ltd., 2022 U.S. Dist. LEXIS 45423 (S.D. Tex. Mar. 15, 2022). In that case
plaintiffs, a group of laborers conducting hurricane relief work, alleged that they were
misclassified as independent contractors and paid a flat rate per day regardless of how
many hours they worked and denied overtime in violation of the FLSA. The defendant
was a construction management company that contracted with Puerto Rico’s housing
authority to restore homes that suffered hurricane damage in Puerto Rico, and had
executed near-identical subcontracting agreements with over 100 entities to perform the
restoration work. Under the subcontracting agreements, the defendant paid the
subcontractors a unit or line-item price, and each subcontractor was responsible for and
determined the workers’ wages. Id. at *4. The plaintiffs alleged that the defendant was a
joint employer with the subcontractors and therefore liable for any FLSA violations. The
court conditionally certified two collective actions of hurricane relief laborers that were
classified as independent contractors and received either a day rate or straight time
without overtime compensation. Id. at *8-9. After discovery, the defendant subsequently
moved to decertify the collective actions and for summary judgment on the plaintiffs’
claims. The court first dismissed the opt-ins who failed to respond to court-ordered
discovery or failed to timely file consent forms. Turning to the motion for decertification,
the court held that the plaintiffs presented evidence of FLSA violations arising out of
individual circumstances, and not a common plan, policy, or decision of the defendant
and its subcontractors to violate the FLSA. Id. at *20. The court opined that the
deposition testimony from multiple opt-ins demonstrated the varying job responsibilities
held by the plaintiffs, including one plaintiff’s testimony that he was a supervisor, and
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© Duane Morris LLP 2023
Wage & Hour Class And Collective Action Review – 2023
