I love Assistant Manager class actions because it gives a defense lawyer a “golden” opportunity to defeat class certification by asserting that too much individual scrutiny is required to allow a class action to proceed. A beautiful example of this is a recent Walmart case where a group of Assistant Managers dropped their misclassification lawsuits, after they were unable to secure class certification. They did, however, arrive at settlements for themselves. The case is entitled Swank et al. v. Walmart Stores Inc., and was filed in federal court in the Western District of Pennsylvania.
The plaintiffs alleged they were misclassified as exempt. On the surface, it seemed that there was some superficial appeal to their claims as they were three levels down on the hierarchy of Walmart management personnel, after Store Managers and Co-Managers. They claimed (as the plaintiffs in these cases usually do) that they spent the overwhelming majority of their time performing non-exempt work, i.e. the same work as their subordinates, worked sixty (60) hours per week and did not receive overtime. Thus, as a result, they claimed they were making less than the hourly employees.
These employees also claimed that they could not hire or fire and were given no authority to make (or have input into) decisions regarding the operation of the stores. The cases of these different plaintiffs were consolidated in 2015. The Judge indicated the Complaints could survive motions to dismiss, but was dubious whether a class could survive as the classes of Assistant Managers had too varied experiences that would allow a class action to proceed. The plaintiffs asked for reconsideration which was denied and which also brought a rebuke from the Judge for trying a legal argument the plaintiffs had opposed when Walmart sought to do that same thing earlier on in the case.
A Walmart spokesperson observed that “we believe our roles are properly classified under the FLSA and applicable state law, and the court denied class treatment to these plaintiffs earlier this year. While we deny the plaintiffs’ allegations, we elected to resolve many of the cases with the individual plaintiffs in the best interest of the company. We are glad we could resolve these matters.”
This case highlights the efficacy of using the individualized defense to defeat class actions. With any group of these types of employees, who perform subordinate-type work but who also perform and discharge management functions, one size certainly does not fit all. It is the advocate’s job to highlight this need to look at every single Assistant Manager to see if they fit within the exemption, which is the anathema to a bona fide class action.
Works (almost) every time…