There have been many class actions concerning the job title “Assistant Manager” and this malady has risen again. The chain, Hooters, has been sued in a nationwide collective action that alleges the Company misclassified assistant store managers, calling them supervisors, in order to avoid paying overtime. The case is entitled Stirewalt et al. v. Hooters of America LLC and was filed in federal court in the Northern District of Alabama.
The named plaintiffs allege that they worked up to eighty (80) hours per week but were never paid overtime due to their misclassification. The claim they only had the title of Manager, but that their main duty was sales and not the supervision of at least two other employees, over whom they could exercise managerial authority. They claim that when they did create schedules, they were “almost always changed,” according to the Complaint. They claim that although they interviewed new job applicants, the recommendations they made were often ignored by their supervisors.
More significantly, the Complaint alleges fraudulent conduct by the Company. It alleges that the “defendants have intentionally and repeatedly misrepresented the true status of managerial compensation … to avoid suspicion and inquiry by employees regarding their entitlement to monies owed to them. Plaintiffs, as well as other similarly situated present and former employees, relied upon these misrepresentations by defendants and [were] unable to determine [their] true status under the FLSA by the exercise of reasonable diligence because of those misrepresentations.”
The plaintiffs want notices to be sent to current and former assistant managers who worked at a Hooters store within the last three years. This would allow these workers to opt in to the collective action. The plaintiffs seek overtime, commissions, bonuses, vacation and sick time and, naturally, attorneys’ fees.
I don’t mind these so much. (Famous last words?) These kinds of actions usually necessitate an individualized determination of the duties of the various employees and that is the death knell of a viable class action. The problem is if they were subject to the same, uniform, system-wide policies, that would be bad. But, at least from the start the defendant here has a legitimate, viable chance of defeating the motion(s) for class certification.