Regretfully, to my lights, conditional certification seems all too easy for plaintiffs in a FLSA collective action to secure. Are things changing? A federal judge has refused to certify a proposed class of natural gas pipeline inspectors for Gulf Interstate Field Services Inc. in a Fair Labor Standards Act overtime suit, concluding that the named worker in the suit is not similarly situated. The case is entitled Sloane v. Gulf Interstate Field Services Inc., and was filed in federal court in the Middle District of Pennsylvania.
The employee has alleged that he was paid a day rate but overtime was not paid for hours exceeding forty. Judge Brann observed that many factors militated towards denying conditional certification. He noted that there were many differences among the putative class members, such as where they worked, what they did and who their clients were. Thus, there was a lack of commonality amongst the workers.
The Court aptly observed that the “plaintiff seeks certification of collective action generically comprising ‘all current and former employees of [GIFS] who performed work as a pipeline inspector in the United States in any workweek between three years prior to the date of the court’s order and the present. The proposed class otherwise embraces no limitations based on geography, timeframe, client, position type or project nature, though it does incorporate a carve-out for three separate projects where workers were believed to not have suffered any unlawful treatment.”
Significantly, the Court also focused on the prior convictions of lead plaintiff Thomas Sloane, finding that those convictions and his evasiveness and dissembling about them with his own lawyer, showed that he was not a proper class representative. Three of Sloane’s offenses involved burglary or theft; the Court concluded that this “propensity for untruthfulness” would taint the entire case for the other possible class members.
This is the dogma that must be pursued when defending one of these collective actions. Look for discrepancies in the fabric of the class, especially as regards the named plaintiff and the rest of the class. Herein, this task was made easier because of the criminal convictions and conduct related to those convictions of the named plaintiff. In sum, if the named plaintiff is but a poor representative of a putative class, the case for conditional certification is rendered much weaker.