{"id":1258,"date":"2024-03-06T00:00:41","date_gmt":"2024-03-06T04:00:41","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=1258"},"modified":"2024-03-06T00:00:41","modified_gmt":"2024-03-06T04:00:41","slug":"ohio-federal-court-decertifies-flsa-collective-action-in-latest-application-of-sixth-circuits-strong-likelihood-standard","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2024\/03\/06\/ohio-federal-court-decertifies-flsa-collective-action-in-latest-application-of-sixth-circuits-strong-likelihood-standard\/","title":{"rendered":"Ohio Federal Court Decertifies FLSA Collective Action In Latest Application Of Sixth Circuit\u2019s \u201cStrong Likelihood\u201d Standard"},"content":{"rendered":"

\"\"<\/a>By Gerald L. Maatman, Jr., Jennifer A. Riley, and Kathryn Brown<\/strong><\/p>\n

Duane Morris Takeaways:<\/strong> On February 29, 2024, in Miller II v. SBK Delivery, LLC, No. 2:21-CV-04744 (S.D. Ohio Feb. 29, 2024), Judge Michael H. Watson of the U.S. District Court for the Southern District of Ohio applied the Sixth Circuit\u2019s standard in Clark v. A&L Homecare and Training Center, LLC, 68 F.4th 1003 (6th Cir. 2023,) to decertify<\/a>\u00a0a collective action of delivery drivers seeking unpaid overtime under the FLSA.\u00a0 As one of the first decertification rulings applying the Clark standard, the Court\u2019s opinion is required reading<\/em> for businesses litigating FLSA claims before courts in the Sixth Circuit. <\/em><\/p>\n

Case Background<\/strong><\/p>\n

On September 22, 2021, the plaintiff in Miller II <\/em>filed a Complaint against the defendant, SBK Delivery, LLC. The defendant contracted with multiple package carriers to provide delivery drivers. The package carriers paid the defendant for each package the drivers delivered. The defendant then paid each driver a percentage of the payment it received from the package carrier. The plaintiff asserted claims of unpaid overtime under the FLSA and Ohio law as well as a breach of contract claim. The plaintiff filed the FLSA claims on behalf of a proposed collective action of drivers who entered into independent contractor agreements with the defendant to provide services as delivery drivers.<\/p>\n

On February 9, 2022, the Court approved the parties\u2019 joint stipulation to conditionally certify and issue notice to a collective action consisting of current and former delivery drivers who performed work for the defendant between September 22, 2018 and the present who worked over 40 hours per workweek and were classified as independent contractors.<\/p>\n

Nineteen (19) individuals filed consents to join the lawsuit as prospective opt-in plaintiffs.<\/p>\n

On March 22, 2023, the defendant filed a motion to decertify the collective action. Prior to the close of briefing on the decertification motion, on May 19, 2023, the Sixth Circuit issued its pivotal decision in Clark<\/em>.<\/p>\n

In Clark<\/em>, the Sixth Circuit articulated a \u201cstrong likelihood\u201d standard for facilitating notice to potential opt-in plaintiffs pursuant to 29 U.S.C. \u00a7 216(b) of the FLSA. Under the new standard, only after demonstrating a \u201cstrong likelihood\u201d that similarly situated other employees exist may opt-in plaintiffs become parties to the named plaintiff\u2019s lawsuit.<\/p>\n

Following the Sixth Circuit\u2019s ruling, the parties filed supplemental briefing to address the similarly-situated status of the collective under Clark<\/em>.<\/p>\n

The Court\u2019s Ruling<\/strong><\/p>\n

Because the parties had stipulated to conditional certification prior to the Sixth Circuit\u2019s ruling in Clark<\/em>, the Court had not had an earlier opportunity to rule on the plaintiff\u2019s similarly-situated status relative to those in the collective action prior to the issuance of notice to potential opt-in plaintiffs.<\/p>\n

Applying the Clark<\/em> standard to the plaintiff\u2019s claims for the first time, the Court held that the plaintiff failed to show a strong likelihood that he was in fact \u201csimilarly situated\u201d to the putative opt-in plaintiffs.<\/p>\n

The Court reasoned that it was not enough for the plaintiff to show that he was subject to the same alleged FLSA-violating policy of misclassification as an independent contractor of the defendant. The plaintiff also needed to establish that the question of the amount and extent of alleged unpaid overtime could be determined on a collective-wide basis.<\/p>\n

The Court found the plaintiff dissimilar from the opt-ins in multiple key respects, including with respect to the route assignment a driver chose, since each route assignment had different start times, end times and duration. Based on individual differences in whether a driver worked overtime hours, the Court reasoned that evidence of the named plaintiff\u2019s hours worked would not be representative of the claims of the opt-in plaintiffs. Accordingly, the Court concluded that it would need to analyze individually each opt-in plaintiff\u2019s overtime claims to determine liability, which would be completely contrary to the purpose of the collective action mechanism.<\/p>\n

As a result of the Court\u2019s application of Clark<\/em>, it held that the plaintiff\u2019s FLSA claims must proceed on an individual basis only. For these reasons, the Court dismissed each of the opt-in plaintiff\u2019s claims without prejudice.<\/p>\n

Implications For Employers<\/strong><\/p>\n

The Court\u2019s ruling in Miller II<\/em> demonstrates that the Clark <\/em>standard is a game changer for FLSA litigants in district courts within the Sixth Circuit.<\/p>\n

To satisfy the \u201cstrong likelihood\u201d iteration of the similarly-situated standard for FLSA certification, plaintiffs must show more than the existence of a common policy or practice that allegedly violates the FLSA. The ruling highlights the opportunity the Clark <\/em>standard affords to defendants to whittle down the scope of an FLSA lawsuit significantly by marshaling facts of dissimilarity between the named plaintiff and others. To maximize the ability to prevail on a certification ruling under the Clark <\/em>standard, companies ought to devote significant resources to managing FLSA compliance risks on the front end, before any litigation arises.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Kathryn Brown Duane Morris Takeaways: On February 29, 2024, in Miller II v. SBK Delivery, LLC, No. 2:21-CV-04744 (S.D. Ohio Feb. 29, 2024), Judge Michael H. Watson of the U.S. District Court for the Southern District of Ohio applied the Sixth Circuit\u2019s standard in Clark v. … <\/p>\n

Continue reading “Ohio Federal Court Decertifies FLSA Collective Action In Latest Application Of Sixth Circuit\u2019s \u201cStrong Likelihood\u201d Standard”<\/span><\/a><\/p>\n","protected":false},"author":575,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[42],"tags":[],"ppma_author":[7,9,87],"class_list":["post-1258","post","type-post","status-publish","format-standard","hentry","category-wage-hour-litigation"],"authors":[{"term_id":7,"user_id":575,"is_guest":0,"slug":"gmaatman","display_name":"Gerald L. Maatman, Jr.","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2022\/09\/maatmangerald-100x100.jpg","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""},{"term_id":9,"user_id":576,"is_guest":0,"slug":"jariley","display_name":"Jennifer A. Riley","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2023\/08\/rileyjennifer-100x100.jpg","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""},{"term_id":87,"user_id":645,"is_guest":0,"slug":"krbrown","display_name":"Kathryn R. Brown","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2023\/05\/brownkathryn-100x100.jpg","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/1258","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/users\/575"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/comments?post=1258"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/1258\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/media?parent=1258"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/categories?post=1258"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/tags?post=1258"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/ppma_author?post=1258"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}