I have written that it is a rarity that a class is denied conditional certification in a FLSA collective action. When that happens, it is (often) the result of the individuality defense that is the best weapon to deflect the class. Another way to defeat the motion for certification is to argue that the evidence submitted does not allow the conclusion that a bona fide “class” exists. This principle has been recently applied in a case where the federal judge has denied conditional class certification for a proposed class of Assistant Managers claiming overtime. The suit alleged that these employees, who worked at Home Goods, were misclassified as exempt under the Fair Labor Standards Act. The case is entitled Jenkins v. The TJX Cos. Incorporated and was filed in the Eastern District of New York.
The court ruled that the plaintiffs failed to prove that all of them performed (or did not perform) the kinds of duties that would entitle them to overtime. This case highlights what happens when the support for the class (e.g. affidavits) is simply too paltry or insufficient to evidence the requisite commonality needed for a class to exist.
The evidence consisted of the lead plaintiff’s own testimony and a single page report submitted by a consultant that supposedly showed the breakdown of duties performed by the Assistant Managers. The court ruled, quite correctly, this was not enough to sustain a viable class. The court stated that “although plaintiff’s burden at this stage of the proceedings is modest, the court cannot justify certifying a class of plaintiffs, likely numbering in the hundreds, on the basis of such thin factual support.” This is very important because the initial showing for the conditionally certified class is low, but this minimal showing did not even meet that reduced standard.
The submission by the so-called “expert was also criticized by the court. The report was so vague that no valid or credible conclusion could be drawn from it; any conclusion that could try to be drawn would only be speculative. The report was skimpy to the point of not providing any context or explanation of the conclusions or findings.
The plaintiff alleged that he (and others) were routinely performing all manner of non-exempt tasks, including cleaning/sweeping, unloading trucks and taking out garbage. If these tasks comprised a major portion of the work time (judged on a weekly basis) of the employees, their exemption would be undermined. The failure to buttress these allegations with anything other than the scanty evidence discussed above, however, doomed the case to failure. As the court found, [the plaintiff] has failed to provide any factual support for the contention that other [Assistant Managers] at Home Goods’ stores in New York, let alone nationwide, primarily performed non-exempt tasks.”
The lesson learned here is that defense counsel must scrutinize, tear apart and attack the initial showings made by the plaintiffs. Herein, plaintiffs’ counsel did the defense a favor by rendering such a flimsy showing of “evidence.” This scrutiny, coupled with a corollary attack based on the fatal (to the class) need for individual assessment, gives defense counsel the best chance to defeat a motion for conditional certification.