When fighting a FLSA class action on an exemption issue, the employer must seek to prove all class members fit within an exemption and/or attack the legitimacy of the class. A recent case demonstrates how difficult it is to defeat a class certification motion by claiming the class is too small, especially when there is evidence the employer has tried to keep people from becoming class members. The case involves workers titled as “Logistics Coordinators.” The case is entitled Rood v. R&R Express Inc. and was filed in federal court in the Western District of Pennsylvania.

The Judge stated that the small number of opt-ins was not indicative that the class was deficient as the Court found it remained easier to litigate the case as a class action, especially given the employer’s action. The Court wrote that “this is an unusual case in that R&R Express took affirmative steps to discourage its past and current employees from participating in the class R&R Express cannot actively work to limit the size of the putative class and then use its success as a basis to thwart certification.” Thus, the Court denied the motion to de-certify and also would not dismiss the case on exemption grounds.

The job duties of these workers included arranging transportation for cargo for Company customers. They were first paid hourly, but then switched to a flat salary and then commissions, but not paid overtime. In July 2021, the Judge certified a class, but only three workers joined the action. The bigger class was a maximum of seventeen people, asserted the Company, so it requested that the Court decertify the class into two separate categories. The Judge, however, observed that there no legally mandated minimum number of opt-ins was necessary to keep the collective action going. Although the seventeen was below the forty member “guideline” adopted by the Third Circuit, the Judge found this did not mandate decertification, but rather only a more exacting analysis on the class action treatment issue.

The Judge also would not reward the Company’s deliberate efforts to cut down the number of class members. The Judge stated that, “for example, R&R Express’s president made threats to draw out the proceedings for any claimant who tried to join the action by subpoenaing their phone records, reviewing every email they ever sent, and so on. The Judge also commented that “R&R Express also drafted and distributed affidavits to the putative class members containing averments that directly contradicted the class claims. R&R Express then encouraged the class members who received these affidavits to sign them under coercive circumstances.”

The exemption defense, the “magic bullet” defense, as I call it, was also rejected. The Judge concluded that the employees did not fit within the administrative exemption (the hardest one to prove) as he found their primary duty was making sales, not office work directly related to management or general business operations.

The Takeaway

The Company unnecessarily and improperly sought to limit the size of the class. This irritated the Judge no end and he was not inclined at all to give the Company any consideration on an argument that it had contrived to manufacture. This highlights the difference between Rule 23 actions, which depend upon numbers to a greater extent, and FLSA collective actions, where numbers are not as critical to the survival of a class.

Especially where the employer tried to manipulate the result…