When a class becomes conditionally certified in a FLSA collective action, the only weapon (absent settlement) that the defendant-employer then is left with is a motion to de-certify the class and reduce the litigation to a single plaintiff. Putting all of one’s eggs in that basket is risky, because if that overture fails, the plaintiffs are really in control of the entire litigation and the damages/stakes escalate sharply.

So has learned Avis Budget Car Rental LLC, when the federal district court in New Jersey rejected the defense’s motion to de-certify a class of shift managers bringing overtime claims based upon misclassification. The motion was founded on the standard defendant’s contention that the job duties of the people were too dissimilar to allege that a common pattern or practice prevailed. It is this need for individualization that dooms, or not, a collective action. The case is entitled Ruffin Jr. et al. v. Avis Budget Car Rental LLC et al. in the District of New Jersey.

U.S. District Judge Susan D. Wigenton concluded that there were not sufficient differences in the job duties of the plaintiffs. “Deposition testimony of plaintiffs and defendants’ witnesses demonstrates that plaintiffs performed primarily the same duties, were nearly all given the job title and job description of shift manager, underwent the same training program, and were subject to the same policies — including not being paid overtime wages,” the Court stated.

Although Judge Wigenton acknowledged that there were some differences in job duties performed, they were not “material and ‘any such differences are outweighed by the similarities between those plaintiffs.’ The shift manager’s theory was that they performed menial tasks the majority of their work time and that this amount of time undermined the premise that their “primary duty” was management or supervision.

This outcome highlights the way that one of these cases can spiral out of control, as it were. The plaintiff-side legal fees are probably significant, the damages, which will be doubled, will be significant and there is the extra year added on to the statute of limitations. Although, these days, I believe that a very viable, cost effective strategy is to settle for (only) the named plaintiff and fix what is broken, when an entire class of people is implicated, the stakes become big enough for the employer to roll the dice on a de-cert motion, although the outcome here was not good.