I have written several times about Assistant Manager class actions being quite difficult to defend because these employees often perform a great deal of “subordinate” type work, making the issue of “primary duty” a tricky one.  In a recent class action involving these employees, a federal judge has denied a motion for conditional certification (which does not often happen) on the basis that the lead plaintiff Assistant Manager was not similarly situated to the people he tried to represent. The case is entitled Guillen v. Marshalls of MA Inc and was filed in the Southern District of New York.

The plaintiff had claimed that the violations were willful, thereby entitling him (and the other opt-ins) to a third year of recovery.  Then, going after the primary duty requirement, the plaintiff alleged that he devoted the bulk of his time to non-exempt tasks such as janitorial work and unloading trucks.

The deficiency in the plaintiff’s motion, however, was that he failed to show that Assistant Managers throughout the country were performing their jobs in precisely the same manner.  Put differently, there was not a strong showing that Assistant Managers elsewhere were discharging non-exempt duties.  The court stated that “Guillen’s latest motion adds virtually no evidence suggesting that Guillen is similarly situated to ASMs in Marshalls stores nationwide with respect to the main contention in this case: that he was required to perform tasks that rendered him nonexempt from the FLSA’s overtime requirements.”

The court noted that there was nothing in the job description for this classification that required the performance of non-exempt work that the plaintiff alleged was done.  There was no evidence of any nationwide requirement(s) in this area as well.  The plaintiffs could not find a companywide policy that would apply to all of these employees.  As I have often noted, that is the anathema for an employer defending such a case. In this case, there could have been thousands of employees employed in these jobs across the country and without a showing of commonality (i.e. a policy), there would be a need for individual scrutiny of what each employee actually did.

What this case again reinforces for me is that the knee jerk reaction of any company defending a FLSA collective action should be to look for and solidify all evidence of the dissimilarity of the lead plaintiff and the “others.”  Company compensation policies should also be examined and, if need be, appropriately revised.

In a recent posting in the MS & K Employment Alert, Steven Schneider and Ivan Perkins wrote about the recent Supreme Court decision in Wal-Mart Stores, Inc. v. Dukes.  In Dukes, the Court de-certified a class of more than one million people.  Although the Court held that the individual plaintiffs were entitled to determination of their damages on an individual basis, rather than by the application of a “formula” to their situations, the narrow majority (5-4) severely restricted the scope of class actions.

The Court essentially rendered the “commonality” requirement in class actions a much more tougher hurdle for plaintiffs to satisfy.  This is particularly true if the plaintiffs proposed class “suffers” from the malady of all workers not being subjected to a uniform, allegedly discriminatory company practice or policy.

The gravamen of the case was that the plaintiffs believed they were discriminated against because of their sex in compensation and opportunities for promotion and advancement.  The plaintiffs’ case was founded on statistical paradigms, such as the fact that women held two-thirds of the hourly jobs, but only one-third of supervisor/management jobs.  Both lower courts found that certification of the class was proper, a class defined as “[a]ll women employed at any Wal-Mart domestic retail store at any time since December 26 1998.”

The majority held that Federal Rule of Civil Procedure 23(a), i.e. that “questions of law or fact common to the class,” was the so-called commonality requirement and then the majority ruled that commonality did not exist because the plaintiffs were unable to show that there was a general, overall “common” policy related to the discriminatory allegations raised.  In this regard, the best proof offered by the plaintiffs was a sociologist who proved he did not have any real idea how widespread the “discrimination” was.

The authors do not believe that a Dukes defense would be viable in a FLSA action, as such class actions take issue with specific company policies, such as methods for classification of employees or determining if so-called off-the-clock work is compensable, as opposed to making vague contentions that a particular manner of “thinking” exists within the managerial hierarchy. They believe that plaintiffs will be easier able to show a common policy applicable to wage hour issues than to show common thinking and/or a policy related to discrimination.

I understand their point of view, but I believe there might be a use for Dukes in FLSA/state law class action defenses, especially if there is no written policy and the plaintiffs are trying to make their case by showing or establishing a practice.