Wage & Hour Class and Collective Action Review — 2023 - Report - Page 34
the claims examiners' authority varied significantly, including making claim decisions or
recommendations to supervisors. Id. at *7. Though the plaintiffs argued that their
discretion was constrained by customer plan criteria, the defendant's policies, and
audits by supervisors, the defendant asserted that the constraints on the claims
examiners' discretion itself varied significantly and supported decertification. Id. at *7-8.
The court agreed. It held that the plaintiffs failed to demonstrate any material factual or
legal similarities within the membership of the collective action. Id. at *9. For these
reasons, the court granted the defendants’ motion for decertification and denied the
plaintiffs’ motion for Rule 23 class certification.
E.
Rulings Denying Decertification
The rulings from 2022 denying decertification largely resulted from defendants’ inability
to identify material differences or individualized issues that would preclude a collective
action. While geographic differences and different locations can help, employers
challenging certification of a collective action must focus attempts to establish
differences on the common practice alleged or the job duties at issue.
In Brayman, et al. v. Keypoint Government Solutions, Inc., 2022 U.S. Dist. LEXIS 60290
(D. Colo. Mar. 31, 2022), the plaintiffs, who worked as field investigators (FIs) for the
defendant, filed an FLSA collective action and Rule 23 class action asserting that the
defendant failed to pay them overtime. The court previously conditionally certified a
collective action. Following discovery, the plaintiffs moved for class certification and
collective action certification while the defendant filed a motion for decertification. The
plaintiffs argued that they were similarly-situated because they were subject to a
uniform practice, specifically the defendant’s failure to compensate FIs for all overtime
worked. Id. The plaintiffs argued that this violation was widespread across the
defendant’s workforce, and across geographic regions and managers, due to a common
practice of over-assignment of work and minimum performance expectations that
encouraged or pressured the plaintiffs to under-report their hours. Id. at *13-14. In
addition, the plaintiffs claimed that they shared the same job position and duties, and
that they were subject to the same guidelines, directives, centralized assignment
strategies, and minimum performance expectations. Id. The defendant argued that the
plaintiffs' factual and employment settings varied widely and were therefore unfit for
collective action adjudication, citing the fact that the plaintiffs worked remotely in more
than 32 different states and were supervised by 111 different field managers (FMs). Id.
at *14-15. The defendant also argued that the plaintiffs had failed to establish the
existence of an unlawful policy, as the plaintiffs had consistently testified that no FM had
instructed them to under-report their hours or work hours without reporting the time. Id.
at *15-16. As a result, the defendant further argued that it had no reason to believe that
the FIs were working off-the-clock, falsifying their timesheets, or under-reporting their
hours, especially as each FI had acknowledged the policy forbidding those actions. Id.
The court concluded that the material terms of the plaintiffs’ employment, including the
policies and practices to which they allegedly were uniformly subjected, weighed in
favor of finding the plaintiffs similarly-situated. The court held that, although the plaintiffs
worked in different geographic regions under the supervision of different FMs, they all
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© Duane Morris LLP 2023
Wage & Hour Class And Collective Action Review – 2023
