Labor & Employment Law Daily Wrap Up, WORTH NOTING—Cases of note dealing with wage and hour issues, (Jan 24, 2025)

By WK Editorial Staff

A roundup of recent decisions involving wage and hour issues of interest to the labor and employment community.

D. Colo.: Court preliminarily approves settlements totaling over $188 million in wage-fixing case. A court granted preliminary approval of settlements of class actions brought by employees in the meat-packing industry. Two employees brought a class action lawsuit on behalf of a class of workers employed at beef and pork processing plants alleging that fifteen major meat processing companies conspired to fix and depress employee wages, violating the Sherman Antitrust Act. The employees accused the companies, “which collectively produce more than 80 percent of the red meat sold to consumers in the United States,” of “depress[ing] the compensation paid to [their] employees” and those of “their subsidiaries, and related entities.” The employees settled with six of the companies, and filed motions seeking preliminary approval of the settlements, which total over $188 million. The court found that the proposed settlements satisfied the prerequisites for class certification, and were fair, reasonable, and adequate. The court also appointed class counsel and stayed proceedings against the settling companies (Brown v. JBS USA Food Co., No. 1:22-cv-02946-PAB-STV (D. Colo. Jan. 15, 2025)).

E.D. La.: Exotic dancers were employees according to the FLSA. Seventy-eight exotic dancers from various strip clubs in Louisiana alleged they were improperly classified as independent contractors, which resulted in a failure to pay minimum wages as required by the FLSA. The dancers filed a motion for partial summary judgment, seeking a declaration that they were employees under the FLSA and that the clubs were liable as employers. The court found that the dancers were indeed employees based on factors such as the clubs’ control over working conditions, the relative investments of the parties, and the integral nature of the dancers’ services to the clubs’ business, among other things. However, the court denied summary judgment regarding the clubs’ status as employers. The evidence did not conclusively establish that each club or individual defendant met the FLSA’s definition of an employer (Clifton v. Famous Bourbon Management Group, Inc., No. 2:20-cv-02764-JTM-JVM (E.D. La. Jan. 14, 2025)).

E.D.N.Y.: Opt-in plaintiffs failed to respond to discovery, summary judgment motion. Construction workers hired by subcontractors claimed that a general contractor and its officers failed to pay overtime under the FLSA and New York Labor Law (NYLL) and failed to provide them with wage notices under New York’s Wage Theft Prevention Act. The general contractor and officers moved for summary judgment, arguing that opt-in plaintiffs failed to respond to requests for admissions, and that by doing so, they admitted that the general contractor and officers did not employ them and were not liable for the alleged claims. The opt-in plaintiffs failed to respond to the motion. The court applied the “economic reality” test, examining factors such as hiring and firing authority, supervision and control of work schedules, and use of premises and equipment. The court found that the subcontractors, not the general contractor, had the power to hire, fire, and supervise the workers, and that the workers used their own tools rather than the contractor’s equipment. The court granted the motion, finding that the general contractor and officers were not the opt-in plaintiffs’ employers, and that “no genuine fact issue exist[ed]” (Arce v. Sovereign Industries Group Inc., No. 1:19-cv-00489-NGG-JRC (E.D.N.Y. Jan. 15, 2025)).

N.D. Ga.: Restaurant servers receive partial summary judgment in FLSA tip credit case. A server at an Atlanta restaurant sued the restaurant and its two owners alleging they violated the FLSA by illegally retaining servers’ tips and by failing to properly notify servers “of their intent to use a ‘tip credit’ under 29 U.S.C. § 203(m).” One owner moved for summary judgment, alleging improper service of process. The other owner moved for summary judgment, arguing he was not an “employer” because he did not control the restaurant’s day-to-day operations. The server moved for summary judgment on behalf of herself and similarly-situated employees arguing that the restaurant was an “enterprise;” that the owners were “employers;” that the employers failed to advise the servers that they intended to use a tip credit and retained server tips to pay staff and expenses between November 2019 and July 2021; and that the employers’ conduct was “not done in ‘good faith’ and was instead ‘willful.’” The court granted partial summary judgment for the servers, recognizing the restaurant’s status as an FLSA enterprise; that the restaurant and owners retained tips between November 2019 and July 2021; and that the other owner was an “employer” under the Act. The motion was denied as to the other claims. The servers were ordered to file proof of service as to the one owner. The other owner’s motion alleging he was not an employer failed (Kincaid v. Pasha Atlanta, LLC dba Pasha Restaurant and Bar, No. 1:23-cv-03592-TWT (N.D. Ga. Jan. 14, 2025)).

N.D. Ill.: Motion for conditional certification failed for lack of evidence of ‘common policy.’ A delivery driver was denied a motion for conditional certification of an FLSA collective action alleging that an employer misclassified drivers as independent contractors, as opposed to employees, to compensate them in an unlawful manner. The truck driver sued two companies, alleging misclassification of drivers as independent contractors and improper compensation practices, in violation of the Illinois Wage Payment and Collection Act (IWPCA) and the FLSA. The driver, who worked full-time under an independent contractor agreement, was required to follow specific instructions from one company and submit paperwork to the other, while deductions from his pay led to earnings below minimum wage. The court found that the driver's evidence was insufficient to demonstrate that the alleged FLSA violations were part of a common policy. The driver relied on his understanding of the situation, anonymous online reviews, and social media posts, but failed to provide evidence supporting the existence of a common policy affecting other drivers (Burns v. Fleetech, Inc., No. 1:23-cv-16835 (N.D. Ill. Jan. 14, 2025)).

Cases: WageHour Overtime ClassActions RemediesDamages MinimumWage CoverageLiability Procedure EvidenceDiscovery EmployeeStatus