I have often observed that when a class is certified in a FLSA action, it is very difficult to cut that class down, or, in legalese, to de-certify that class. In a recent FLSA collective action involving CVS pharmacy technicians, entitled King v. CVS Caremark Corp, Dkt No. 1:07-cv-21824-dig, brought in federal court in Florida, that is precisely what has occurred. Now, only two plaintiffs remain in a case in which they alleged that CVS Caremark Corp. did not pay them for overtime and meal breaks that they could not take due to the demands of their job. The federal court has granted summary judgment for the employer.

The was filed in July 2007 by pharmacy technicians who alleged CVS failed to compensate them for overtime, the lunch breaks, and preliminary and postliminary duties, that is, job functions which were performed before they began their primary work functions and functions allegedly performed after the “normal” workday ended. The plaintiffs sought not only compensatory damages, but also interest, liquidated damages and their attorney fees. In December 2007, the class was granted conditional certification.

In order to sustain a collective action, the employees must be subject to a common policy, practice or design under which they work. The technicians contended that their action was proper because there was a countrywide timekeeping and payroll system that applied to all of them. They contended that the timekeeping system was fundamentally flawed because it did not allow employees to accurately record their start and end times, which in turn acted to deprive them of overtime compensation. The federal judge disagreed. He concluded that the class must be decertified because there was no uniform timekeeping system and that individual managers used various and different methods for keeping track of employee time.

The judge found a number of variables that affected the processing of time records by store managers in the far-flung CVS “empire” and noted that “a trier of fact would need to engage in an individual assessment of the procedures instituted at each store and the particular allegations of what occurred after each plaintiff accessed the [payroll] system.” Thus, the collective action was dismissed, although the plaintiffs who had sought to join the action by opting in could purse individual claims.

This is a rarity. Usually, once a class is certified, it stays certified. De-certification is a difficult goal to achieve, but, as here, if proof can be adduced that there are individual differences in the personnel actions or policies that affect the putative class members, an employer can succeed. Hard to do, yes. Impossible. No! The employer here should be given significant credit for achieving what is a difficult task, but when the facts do not bear out a pattern or practice de-certification is what should happen.