Only a few weeks ago, I posted and commented upon the never-dying issue of whether Assistant Managers are exempt under the Fair Labor Standards Act and the threat of collective and class actions from these employees.  That time bomb has gone off again, this time with an Assistant Manager working for Big Lots filing a collective action on behalf of allegedly “hundreds” of similarly situated employees. The case is entitled Omiatek v. Big Lots, Inc. and was filed in federal court in the Western District of New York.

It is a typical Assistant Manager case.  The allegation is misclassification, charging that the employees are not exempt from overtime under the executive or administrative exemptions.  It charges (as they all do) that these employees spend the vast majority of their time unloading trucks, unloading boxes, cleaning the store and arranging merchandise.  The suit also charges that the employees do not exercise managerial authority, i.e. hiring, firing, disciplining employees, or making decisions on their compensation.

There is an interesting wrinkle to the case.  The granting of conditional certification (and the maintenance of that certification, as a class) hinges on a showing that they are similarly situated. To achieve this, the plaintiffs need to show that a common policy or practice applied to all potential members of the class.  If the defendants are successful in showing that individual assessment of each plaintiff is necessary, then the motion for class certification will fail.

In 2008, in another Assistant Manager lawsuit filed against this company, that is exactly what happened.  The court in that case (filed in federal court in Louisiana) determined that at least some of the plaintiffs had been properly classified as exempt and thus a class action was inappropriate. This is a distinct possibility when hundreds and hundreds of employees are involved.  There is a more than a good chance that some of them do, in fact, exercise the requisite managerial authority to fit within the exemptions.  It takes skillful deposing of the plaintiffs and perhaps expert reports/testimony as well, but it can, and, indeed, must be attempted by the defendants to defeat the motion for class certification.