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Class conditionally certified in kitchen worker OT suit

Virginia Lawyers Weekly//September 11, 2023

Class conditionally certified in kitchen worker OT suit

Virginia Lawyers Weekly//September 11, 2023

Where multiple persons submitted declarations showing that they worked as kitchen workers performing closely related tasks, and regularly worked more than 40 hours a week without overtime pay, their motion for conditional certification was granted.


This case arises from a Fair Labor Standards Act, or FLSA, claim, in which plaintiffs, who are allegedly employees of defendants KBR Inc. and KBR Holdings LLC, claim that they worked for defendants as kitchen workers, and regularly worked more than 40 hours a week without overtime pay.

In plaintiffs’ motion for conditional certification, they seek to represent a putative collective of food service workers who were employed by defendants at Fort Pickett and denied proper overtime compensation during the past three years. The KBR defendants move to strike plaintiffs’ motion.

Motion to strike

The KBR defendants argue that each declaration asserts that the declarant’s primary language is Spanish, but there is no indication that they were properly translated from Spanish to English. KBR defendants request that the court strike the declarations because they are “hearsay.”

Plaintiffs explain that they initially submitted declarations that were in English and translated by members of plaintiffs’ counsel’s firm that declared to have “translated this affidavit from Spanish to English accurately and truthfully to [plaintiff] and [he/she] agrees with everything contained herein.” Plaintiffs argue that the declarations are entirely consistent with federal practice. Moreover, plaintiffs have now submitted certified translations of plaintiffs’ declarations signed by each declarant.

The court will deny KBR defendants’ motion to strike. The evidentiary standard for the conditional certification phase is a low bar and affidavits in support of motions for conditional certification need not meet all evidentiary standards for admissibility. Moreover, plaintiffs have since cured any alleged deficiencies.

Additionally, the cases upon which KBR defendants primarily rely are irrelevant because they were rendered on summary judgment motions. KBR defendants’ motion is troubling because their assertion that the declarations are “hearsay” appears to be a baseless litigation tactic.


Neither the Fourth Circuit nor the Supreme Court has prescribed a process for certification of FLSA collectives. Rather, like most federal courts across the country, district courts within the Fourth Circuit have “uniformly” followed a two-step process.

If the court determines that the plaintiffs meet the FLSA’s “similarly situated” standard, the court will conditionally certify the collective and authorize notice to similarly situated plaintiffs so that they can opt into the collective action. In the second step of collective certification, the court applies “a more ‘stringent’ factual determination” to decide whether a putative collective fulfills the “similarly situated” standard.

Defendants argue the court should instead analyze this case under the Fifth Circuit’s newly established framework in Swales v. KLLM Transp. Servs., UC or the Sixth Circuit’s recently created standard in Clark v. A&L Homecare and Training Ctr., LLC. This court declines defendants’ invitation to apply either of these standards “and will follow the approach of a litany of other courts within the Fourth Circuit, which have done the same when presented with this issue.” Furthermore, the facts and procedural posture in this case diverge from that in Swales in a manner that only underscores the importance of conditional certification and early judicial involvement in the notice process.


Plaintiffs have made a threshold showing that the potential plaintiffs constitute similarly situated employees and that defendants engaged in a common policy or plan. The declarations provided by plaintiffs demonstrate that they performed closely related, if not the exact same job duties. Any differences in the job duties listed between declarants are insubstantial and do not affect this inquiry. For these reasons, the court conditionally certifies the class and will order notice to potential class members.


At the hearing on this motion, the court ruled on the length of the opt-in period. Beyond that, the court ordered the parties to meet, confer and submit a joint statement and proposed discovery plan articulating aspects of the notice upon which they agreed and disagreed.

The court has thoroughly reviewed the parties’ joint filings and concludes that they are reasonable and appropriate. Accordingly, plaintiffs’ motion for conditional certification will be granted as to the request to conditionally certify and denied as to any aspect of the notice that conflicts with the parameters as provided in the filings.

Plaintiffs’ motion for conditional certification granted in part, denied in part. Defendants’ motion to strike denied.

Hernandez v. KBR Services LLC, Case No. 3:22-cv-530, Aug. 11, 2023. EDVA at Richmond (Hudson). VLW 023-3-490. 22 pp.

VLW 023-3-490

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