{"id":866,"date":"2023-10-03T16:57:12","date_gmt":"2023-10-03T20:57:12","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=866"},"modified":"2023-10-03T16:57:12","modified_gmt":"2023-10-03T20:57:12","slug":"in-the-latest-application-of-the-sixth-circuits-novel-strong-likelihood-standard-ohio-district-court-denies-plaintiffs-motion-to-issue-notice-of-flsa-overtime-laws","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2023\/10\/03\/in-the-latest-application-of-the-sixth-circuits-novel-strong-likelihood-standard-ohio-district-court-denies-plaintiffs-motion-to-issue-notice-of-flsa-overtime-laws\/","title":{"rendered":"In The Latest Application of the Sixth Circuit\u2019s Novel \u201cStrong Likelihood\u201d Standard, Ohio District Court Denies Plaintiffs\u2019 Motion to Issue Notice of FLSA Overtime Lawsuit"},"content":{"rendered":"

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

Duane Morris Takeaways:<\/strong> On September 27, 2023, District Court Judge Charles E. Fleming in Woods et al. v. First Transit, Inc., et al., 21-cv-739 (N.D. Ohio Sept. 27, 2023) denied<\/a> plaintiffs\u2019 motion for court-authorized notice of bus drivers\u2019 claims of alleged unpaid overtime wages under the Fair Labor Standards Act (FLSA).\u00a0 The district court applied the Sixth Circuit\u2019s newly-minted standard to conclude the plaintiffs failed to demonstrate a \u201cstrong likelihood\u201d exists that they are similarly situated in relevant respects to other employees of the defendant transportation company.\u00a0 The court\u2019s rejection of the plaintiffs\u2019 \u201cself-serving declarations\u201d and consideration of the defendants\u2019 competing evidence illustrates how the Sixth Circuit\u2019s new standard is a game changer for FLSA litigants in Ohio, Michigan, Tennessee and Kentucky.<\/em><\/p>\n

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

On April 6, 2021, three named plaintiffs filed a class and collective action lawsuit asserting claims of unpaid overtime in violation of the FLSA and Ohio, California and New York state laws.\u00a0 The plaintiffs alleged that the defendant failed to pay overtime wages to fixed-route bus drivers for work performed before and after their shifts.\u00a0 The plaintiffs also alleged the defendant deducted 30 minutes\u2019 worth of time from their pay for unpaid meal breaks even when they did not receive uninterrupted break time.\u00a0 After the district granted the defendant\u2019s partial motion to dismiss the New York and California state law claims, only the Ohio state law claims survived.\u00a0 Additionally, only two named plaintiffs remained after one of the named plaintiff s was shown never to have worked as a fixed-route bus driver.<\/p>\n

Two individuals filed consents to join the lawsuit as opt-in plaintiffs in October 2021 and a third joined the lawsuit in February 2022.<\/p>\n

After approximately six months of fact discovery solely on the issue of conditional certification, the named plaintiffs moved for conditional certification of their claims under the FLSA on June 29, 2022.\u00a0 If granted, the plaintiffs would have authority to issue notice to a collective including any person who drove a fixed bus route for the defendant in any week during the prior three years.<\/p>\n

In support of their motion, the plaintiffs submitted sworn declarations of the two named plaintiffs and three putative opt-in plaintiffs, job descriptions, an employee handbook and a user guide for time entry.\u00a0 In opposition to the motion, the defendant submitted sworn declarations of managers at the locations at which the named or opt-in plaintiffs had worked, declarations of corporate human resources and payroll staff and collective bargaining agreements governing fixed-route bus drivers at various locations.<\/p>\n

After the parties fully briefed the motion, the district court deferred ruling on the motion until the Sixth Circuit Court of Appeals issued its anticipated decision on the standard for conditional certification in FLSA cases.<\/p>\n

On May 19, 2023, the Sixth Circuit in Clark v. A&L Homecare and Training Center, LLC<\/em>, 68 F.4th 1003 (6th Cir. 2023), announced a new standard for determining whether FLSA plaintiffs may issue court-sanctioned notice to other employees.\u00a0 Rejecting the prior standard in which a plaintiff need only make a \u201cmodest factual showing\u201d to win court-authorized notice, the Sixth Circuit held that plaintiffs must put forth sufficient evidence to demonstrate a \u201cstrong likelihood\u201d exists that they are similarly situated to other employees.\u00a0 Factors relevant to the analysis include whether the potential other plaintiffs performed the same tasks and were subject to the same timekeeping and pay policies as the named plaintiffs.\u00a0 After Clark<\/em>, the parties submitted supplemental briefs arguing how the new standard applied to the plaintiffs\u2019 pending motion.<\/p>\n

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

Upon weighing the parties\u2019 competing evidence, the district court answered \u201cno\u201d to the question whether a strong likelihood exists that the named plaintiffs experienced the same policies of unpaid overtime wages as other employees of the defendant.<\/p>\n

The district court concluded that the plaintiffs did not introduce any evidence of a \u201ccompany-wide policy\u201d binding on all fixed-route bus drivers that potentially violates the FLSA.\u00a0 The court stated that the only evidence of the alleged unlawful overtime pay practices came in the form of \u201cself-serving declarations\u201d of doubtful credibility.\u00a0 For example, an opt-in plaintiff declared that she worked as a fixed-route bus driver until December 2020.\u00a0 However, the manager who oversaw the opt-in plaintiff\u2019s location declared that no driver at that location drove a fixed bus route.\u00a0 The court reasoned no \u201cstrong likelihood\u201d exists that the opt-in plaintiff is similarly situated to the named plaintiffs given that the opt-in plaintiff could not be in the proposed collective of fixed-route bus drivers.<\/p>\n

The court also considered the evidence of written policies regarding meal breaks, or the lack thereof, for fixed-route bus drivers.\u00a0 Contrary to the plaintiffs\u2019 allegation of company-wide automatic pay deductions for meal break time, the manager of the location at which one of the named plaintiffs had worked declared that drivers at that location did not even receive meal breaks.<\/p>\n

The collective bargaining agreements in evidence showed that different locations of work had different policies governing time entry and breaks for fixed-route bus drivers.\u00a0 For example, a collective bargaining agreement for one location stated that the defendant paid drivers for 15 minutes of time prior to their route to perform pre-shift work.\u00a0 A collective bargaining agreement for another location said the defendant paid drivers 20 minutes for pre-shift work.<\/p>\n

In sum, the court reasoned that the evidence revealed dissimilarity in policies and practices concerning compensation for the company\u2019s fixed-route bus drivers.\u00a0 Because the evidence showed employees were subject to different policies concerning key issues such as how they report time, how schedules are set, what period of time is compensable, whether they receive a meal break and how meal breaks are paid, the court concluded the plaintiffs did not satisfy the \u201cstrong likelihood\u201d standard announced in Clark<\/em> to obtain court-authorized notice of their FLSA claims.<\/p>\n

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

The district court\u2019s ruling in Woods<\/em> leaves no doubt that FLSA plaintiffs in the Sixth Circuit face a heightened evidentiary burden to obtain court-authorized notice in the wake of the Sixth Circuit\u2019s new standard in Clark<\/em>.\u00a0 The district court clarified that the \u201cstrong likelihood\u201d standard in Clark<\/em> is an evidentiary standard, not a pleading standard.\u00a0 The court\u2019s analysis in Woods<\/em> shows defendants have a genuine opportunity to present evidence to attack the plaintiffs\u2019 efforts to show a common policy of FLSA-violating conduct and thereby block notice to other employees who may expand the scope of the lawsuit exponentially.\u00a0 Employers with operations in the Sixth Circuit ought to use Clark<\/em> as an opportunity to look anew at their wage and hour policies and practices to guard against the risk of costly and time-consuming FLSA litigation.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Kathryn Brown Duane Morris Takeaways: On September 27, 2023, District Court Judge Charles E. Fleming in Woods et al. v. First Transit, Inc., et al., 21-cv-739 (N.D. Ohio Sept. 27, 2023) denied plaintiffs\u2019 motion for court-authorized notice of bus drivers\u2019 claims of alleged unpaid overtime wages … <\/p>\n

Continue reading “In The Latest Application of the Sixth Circuit\u2019s Novel \u201cStrong Likelihood\u201d Standard, Ohio District Court Denies Plaintiffs\u2019 Motion to Issue Notice of FLSA Overtime Lawsuit”<\/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":[],"ppma_author":[7,9,87],"class_list":["post-866","post","type-post","status-publish","format-standard","hentry","category-class-certification-motions"],"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\/866","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=866"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/866\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/media?parent=866"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/categories?post=866"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/tags?post=866"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/ppma_author?post=866"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}