It seems that plaintiffs (and their lawyers) think that all they have to do to get conditional certification is throw up a flimsy Affidavit from the named plaintiff and the Court will hand them conditional certification, like it is giving out candy. Fortunately, in the District of New Jersey that is not the case, as evidenced by a very recent case. The case is entitled Ding v. Baumgart Restaurant Inc. and was filed in the District of New Jersey. Herein, the plaintiff alleged that the employer did not pay him and other non-exempt workers their proper overtime.
The plaintiff was a deliveryman and claimed he worked between 60-65 hours per week. He claimed other workers were similarly situated and he, in support of the class certification motion, submitted an Affidavit regarding the hours and pay rates of other employees. Nothing else was submitted and so the Court relied only on the plaintiff’s affidavit.
Plaintiff asserted in the affidavit that he “know[s] that it is Defendants’ policy not to pay any employee at time and a half rate for all of their overtime hours.” He claimed he knew this “because [he has] talked with other employees, who has [sic] the same or similar working schedule as [he does], and was told that they were also not paid for the total amount of time they have worked, nor compensated for all of their overtime hours worked.” Plaintiff had also “heard” other workers mention how much they had been paid.
Plaintiff also claimed knowledge of the hours and rates of other employees because he worked alongside them and allegedly knew their schedules and that they all worked more than 40 hours per week. However, the plaintiff did not explain how he learned of the fact that the non-deliverymen employees were underpaid. The Court ruled a sufficient showing to warrant conditional certification had not been made. There was no showing that Ding’s experience was typical of other class members. Nor did he show how he knew that other putative class members were not properly paid or were paid less than they were legally owed.
It takes more than a flimsy Affidavit to get certification in this District. It should be that way all over the country. Defense practitioners need to always attack the paucity of such pleadings and, at the minimum, make it tougher for their adversaries to even think of securing conditional, much less final, certification.
Now, this is sanity…