Wage & Hour Class and Collective Action Review — 2023 - Report - Page 35
held the same job title and worked under the same general supervision hierarchy,
thereby rejecting the defendant’s attempt to establish individual differences. Id. at *1718. The court further observed that the plaintiffs were all classified as non-exempt
employees and were subject to the same pay provisions and performance standards
and, although working in far-removed and disparate locations, provided consistent and
corroborating statements attesting to the defendant’s uniform practice of pressuring
them to engage in off-the-clock work and under-report their overtime hours. Id. As a
result, the court held that the plaintiffs had provided sufficient evidence of a common
policy or practice, as well as of a general atmosphere of pressure to under-report hours,
to establish that they were similarly-situated for the purposes of the FLSA collective
action. Id. The defendant’s defenses, the court determined, could be presented broadly
and defeat liability on a collective-wide basis, further demonstrating no reason for
decertification. As a result, the court denied defendant’s motion to decertify the FLSA
collective action. The court also determined that class certification under Rule 23 was
appropriate for the same reasons.
In Diaz, et al. v. N.Y. Paving Inc., 2022 U.S. Dist. LEXIS 179450 (S.D.N.Y. Sept. 30,
2022), the employer was unable to defeat the common policy established by the
plaintiffs to maintain certification as a collective action. The plaintiffs, a group of pavers,
filed a class and collective action alleging that the defendant failed to pay straight time
wages and overtime compensation in violation of the FLSA and the New York Labor
Law. The court previously had granted the plaintiffs’ motion for conditional certification
of the FLSA collective action. Following discovery, the defendant filed a motion to
decertify the collective action, and the court denied the motion. The defendant
contended the plaintiffs’ claims were not viable because they failed to establish the
existence of a common policy requiring uncompensated work. Id. at *2. The defendant
further asserted that any off-the-clock work that the plaintiffs were required to provide
was at the directive of union officials. The court, however, found that through their
declarations and deposition testimony the plaintiffs sufficiently established that the
defendant had common policy requiring pavers to arrive prior to their shifts without
being paId. As a result, the court determined that the plaintiffs made the requisite
showing necessary to establish they were similarly-situated to the other members of the
collective action. For these reasons, the court denied the defendant’s motion to
decertify.
DM39529965.1
35
© Duane Morris LLP 2023
Wage & Hour Class And Collective Action Review – 2023
