{"id":198,"date":"2022-11-23T12:14:42","date_gmt":"2022-11-23T16:14:42","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=198"},"modified":"2023-12-01T17:35:36","modified_gmt":"2023-12-01T21:35:36","slug":"illinois-court-finds-that-collective-action-certification-in-a-wage-hour-case-demands-more-than-barebones-affidavits-when-balanced-against-facially-lawful-policies","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2022\/11\/23\/illinois-court-finds-that-collective-action-certification-in-a-wage-hour-case-demands-more-than-barebones-affidavits-when-balanced-against-facially-lawful-policies\/","title":{"rendered":"Illinois Court Finds That Collective Action Certification In A Wage & Hour Case Demands More Than Barebones Affidavits When Balanced Against Facially Lawful Policies"},"content":{"rendered":"

\"\"<\/a>By Gerald L. Maatman, Jr., Gregory Tsonis, Shaina Wolfe<\/strong><\/p>\n

Duane Morris Synopsis- <\/strong>In Roberts, et al. v. One Off Hospitality Group, Ltd., <\/em>Case No. 21-CV-05868 (N.D. Ill. Nov. 10, 2022), a group of restaurants successfully defended against the proposed conditional certification of a collective action under the Fair Labor Standards Act (\u201cFLSA\u201d) in a lawsuit brought by a bartender.\u00a0 In a win for the defense<\/a> at a stage where plaintiffs generally have a low evidentiary burden, the Court determined that barebones affidavits fall short of what a Plaintiff must show in terms of proof to anchor a conditional certification order. While Plaintiff alleged that the restaurants\u2019 policy off-the-clock work and overtime policies violated the FLSA, Judge Virginia M. Kendall of the U.S. District Court for the Northern District of Illinois determined that Plaintiff did not make the \u201cmodest factual showing\u201d that other similarly situated employees experienced the allegedly common, unlawful policy.\u00a0 The decision demonstrates the importance and value in maintaining up-to-date lawful employee handbooks, and specifically, policies on wages and overtime.<\/p>\n

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

Plaintiff, an hourly non-exempt bartender, filed lawsuit alleging that One Off Hospitality Group \u2014 the owner and operator of several popular restaurants including Publican and Big Star \u2014 and several executives (\u201cDefendants\u201d) violated the FLSA and other Illinois wage and hour laws.\u00a0 She alleged that Defendants failed to properly pay her by requiring her to clock-in and clock-out at the times of her scheduled shift, regardless of the time she actually worked, to avoid paying overtime compensation.\u00a0 She further alleged that Defendants did not pay their employees for performing off-the-clock work and\/or offered gift cards as compensation instead of cash. \u00a0<\/em><\/strong>When she recorded her overtime work, Plaintiff claimed that management reprimanded her for violating internal company policy.<\/p>\n

On July 14, 2022, Plaintiff moved, pursuant to \u00a7 216(b) of the FLSA, for conditional certification of a collective action of all current and former hourly non-exempt employees who worked within Defendants\u2019 restaurants.\u00a0 In support of her motion, Plaintiff attached only two sworn declarations.\u00a0 Plaintiff\u2019s declaration focused on her unique experience, and detailed the compensation structure and missed overtime hours she experienced. Plaintiff also included a declaration from a former Floor Supervisor and Assistant General Manager that worked in Defendants\u2019 restaurants, which focused on the company\u2019s policy of requiring employees to work off the clock. In opposition, Defendants put forth their Employee Handbook and emphasized that their written, uniform policy at every location prohibited off-the-clock work.\u00a0 Defendants also included sworn declarations from employees and managers stating the company policy and the repercussions for engaging in off the clock work.<\/p>\n

The Court\u2019s Ruling Denying Conditional Certification<\/strong><\/p>\n

The Court denied Plaintiff\u2019s motion for conditional certification.\u00a0 It found that Plaintiff had not made a \u201cmodest factual showing\u201d that she and other employees were victims of a common policy or plan that violated the law.\u00a0Id.<\/em> at 3.<\/p>\n

After analyzing the evidence, the Court held that Plaintiffs\u2019 sworn declarations were insufficient and that she needed other corroborative evidence.\u00a0 Notably, Court emphasized that, \u201c[c]ritically absent are affidavits from any other similarly situated employees who worked at the defendants\u2019 restaurants.\u201d Id.<\/em> at 4. Significantly, the Court explained that \u201c[t]he need for additional support is particularly pronounced where, as here, the defendants maintained a facially lawful policy.\u201d Id.<\/em> The Court held that \u201c\u2018modest factual support\u2019 demands more than the barebones affidavits provided.\u201d Id<\/em>.<\/p>\n

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

The Court\u2019s decision in denying conditional certification is not an outlier, but over the past several years, nearly 80 percent of such motions have been granted in federal court due to the low burden applicable to \u00a7 216(b) of the FLSA.<\/p>\n

Judge Kendall\u2019s decision underscores the value of generally maintaining Employee Handbooks and, specifically, policies regarding wages and overtime.\u00a0 In addition to providing clear guidelines to employees on what is allowed, these policies provide the first line of defense in FLSA lawsuits seeking to groups of allegedly similarly situated employees, particularly where plaintiffs marshal minimal evidence that certification of a collective action is appropriate.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Gerald L. Maatman, Jr., Gregory Tsonis, Shaina Wolfe Duane Morris Synopsis- In Roberts, et al. v. One Off Hospitality Group, Ltd., Case No. 21-CV-05868 (N.D. Ill. Nov. 10, 2022), a group of restaurants successfully defended against the proposed conditional certification of a collective action under the Fair Labor Standards Act (\u201cFLSA\u201d) in a lawsuit … <\/p>\n

Continue reading “Illinois Court Finds That Collective Action Certification In A Wage & Hour Case Demands More Than Barebones Affidavits When Balanced Against Facially Lawful Policies”<\/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":[37],"tags":[39,38],"ppma_author":[7,8],"class_list":["post-198","post","type-post","status-publish","format-standard","hentry","category-class-certification-motions","tag-conditional-certification","tag-flsa"],"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":8,"user_id":577,"is_guest":0,"slug":"gtsonis","display_name":"Gregory Tsonis","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2022\/09\/tsonisgreg-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\/198","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=198"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/198\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/media?parent=198"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/categories?post=198"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/tags?post=198"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/ppma_author?post=198"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}