In opposing FLSA conditional certification, defendants often gather affidavits or declarations from the plaintiffs’ co-workers to rebut the allegations in the plaintiffs’ FLSA complaint or to demonstrate that plaintiffs are not similarly situated to the co-workers.  We have faced this litigation tactic on various occasions in our Pennsylvania and New Jersey overtime cases, most recently in a Philadelphia overtime case involving the right of hospital employees to be paid for time spent performing work activities during their meal breaks/lunch breaks.  Here is some caselaw that might help you next time you face this issue:

It’s not too surprising that defendants and their lawyers are able to obtain “happy camper” declarations/affidavits.  As one district court has observed:  “It is, of course, unlikely that potential class members would be unanimously supportive when most potential class members have an interest in maintaining amicable relationships at work.”  Jensen v. Eveleth Taconite Co., 139 F.R.D. 657, 664 (D. Minn. 1991); accord Siddiqi v. Regents of the Univ. of Cal., 2000 U.S. Dist. LEXIS 19930, *24-25 (N.D. Cal. Sept. 6, 2000) (citing cases).  Moreover, common sense dictates that “where the absent class member and the defendant are involved in an ongoing business relationship, such as employer-employee, any communications are more likely to be coercive.”  Belt v. Emcare Inc., 299 F. Supp. 2d 664, 668 (E.D. Tx. 2003); accord Kleiner v. First Nat’l Bank of Atlanta, 751 F.2d 1193, 1201-03 (11th Cir. 1985); see also Shores v. Publix Super Markets, Inc., 1996 U.S. Dist. LEXIS 22396, *9 (M.D. Fla. Nov. 25, 1996) (unlike information “that employees may review and analyze in the privacy of their own home, [an employer's] communications are disseminated at the workplace, by the very managers accused of propagating [illegal] practices”).  Consistent with this common sense notion, district courts handling FLSA conditional certification motions find little or no value in employer-obtained declarations.  See, e.g., Sjoblom v. Charter Comm., 2007 U.S. Dist. LEXIS 94829 (W.D. Wis. Dec. 26, 2007); In re Wells Fargo Home Mortg. Overtime Pay Litig., 527 F. Supp. 2d 1053, 1060-61 (N.D. Cal. 2007); Mevorah v. Wells Fargo Home Mortg., Inc., 2005 U.S. Dist. LEXIS 28615, *12-16 (N.D. Cal. Nov. 17, 2005).

The full panoply of wage and overtime rip-offs in the landscaping and construction industries are too vast to be covered by this mere Newsletter.  Notwithstanding, when you speak with your clients in the landscaping and construction industries, you should be on the lookout for the Company’s failure to pay for travel between the company headquarters and the work location.

Many landscaping and contracting companies require the workers to report to headquarters at the beginning of the workday.  There, the workers gather equipment and materials needed for the day’s project, load the company vehicle, and travel to the worksite.  Then, at the end of the day, the workers must return to headquarters, unload the vehicle, and perform other end-of-shift duties.

The illegality arises when the Company pays the workers only for the time spent on-site at the work location.  Under such circumstances, workers are cheated out of many hours of compensable work.  Indeed, we have represented clients who have been owed thousands of dollars for of unpaid travel time at the beginning and end of the workday.

The Department of Labor has enacted a regulation that specifically addresses travel during the (more…)