In another scenario in which plaintiffs seek class certification, a federal court has denied this effort, concluding that there was not enough similarity in the working conditions of the putative class members. As I have written about numerous times, the plaintiffs must show a widespread policy or practice and it behooves defense counsel to attack that alleged similarity by showing variations and discrepancies in that theory. This case is entitled Ikikhueme v. CulinArt Inc. and was filed in federal court in the Southern District of New York.

The judge observed that the plaintiffs proffered far too little evidence of the alleged “widespread” practice.  The judge stated that “as plaintiff has put forward no evidence regarding similarly situated sous chefs, his motion for preliminary certification of a collective action and approval of the proposed notice must be denied.”

The plaintiff, who worked as a sous chef, claimed that he was classified as exempt, was wrongly classified, and all other sous chefs at the more than 200 locations where the Company provided dining services were also non-exempt. He claimed that this mis-classification was a common practice.  The court, however, found that there was far too insufficient evidence adduced to support the “commonality” claim.

The irony is that, for conditional certification to be granted under the FLSA, really, only a fairly light showing is necessary, but the plaintiffs failed to even meet this lenient standard, according to the Court.  The “evidence” consisted only of an affidavit by the named plaintiff.  The facts showed that the size of these operations varied greatly, ranging from 1-175 employees and some were unionized, while others were not.

The lesson for defense side practitioners is (again) attack the commonality, common practice/policy aspect, especially if plaintiff submits only an iota (or two) of supporting “evidence.”