Conditional Certification

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There is no industry that is immune to wage hour or FLSA actions, including amateur sports leagues.  In an interesting case, a federal Judge has granted conditional class certification to a class of members of an amateur football league who worked as referees and who were, they claim, compelled to perform the work of refereeing other teams’ games for free.  The case is entitled Ernst et al. v. ZogSports Holdings LLC, and was filed in federal court in the Central District of California.

What is even more interesting is that the Court held that the individuals did not have to establish that they were statutory employees before they could send opt-in notices out to other potential class members.  The class that is sought is nationwide.  The employer organizes adult amateur leagues in different sports, e.g. flag football; the players pay to participate, whether as part of a team or individually.  The allegations are that the Company mandates that for each game played, a team must supply a “volunteer referee” to ref at another game.

The plaintiffs claim that their work was integral to the Company’s business and because they performed work identical to that done by paid, “true” employees, they should be deemed employees and eligible for compensation.  The class certification motion asserts that “even if the volunteer referees were truly intending to volunteer, they would still be covered employees under the FLSA.  The FLSA requires payment of minimum wage to workers and generally precludes them from volunteering to work for for-profit enterprises.”

The Company defended by asserting these people were not employees.  The Company also contended the volunteering was like that done by members of all sorts of clubs and organizations. The Judge noted that plaintiffs in other cases had been granted conditional certification where the issue of employee status was still undecided.  The Judge observed that “the parties agree this case is in the notice stage. Plaintiffs therefore need only satisfy the more lenient standard of showing they are similarly situated to other potential collective members, which is met with substantial allegations that potential opt-in collective members were the victims of a single decision, policy, or plan.”

The Takeaway

Individuals cannot waive their right to wages or overtime even if they are denominated as “volunteers.”  There have been many such volunteer cases of late and sometimes the line between volunteer and employee is hard to draw.  It is perhaps not surprising that the Judge allowed opt-in notices to be sent as the issue at the heart of the matter, i.e., employee status, will be decided at the correct time in the case.  The concern for the employer is that it has put all its eggs in the basket of non-employee status.

In for a dime, in for a dollar…

When will employers learn?  They keep classifying retail Store Managers and Assistant Managers as exempt, when these workers are often misclassified, not intentionally, but because the nature of their duties often tends to undermine the primary duty test and render them non-exempt.  Another example is a recent case where Store Managers have been granted conditional certification in their FLSA collective action.  The case is entitled Spack et al. v. Trans World Entertainment Corp. and was filed in federal court in the Northern District of New York.

The plaintiffs can now send out notices to current and former store managers so they might opt in to the case.  The plaintiffs also want a class of Assistant Managers for alleged off the clock work.  The Company, however, won that round, convincing the Judge that it was too soon to certify such a class, asserting that it had not yet been ascertained if these workers were non-exempt, which would allow them to make these claims.

The Judge appeared to reserve decision on a combined class and also indicated that the class could also be de-certified.  The Court stated that “should additional discovery demonstrate the existence of significant differences between the SMs or between the SMs and SAMs, the court can choose to deny any future motion seeking conditional collective certification of the SAMs, or, at the second stage of the analysis, decertify the collective.”

The plaintiffs met the “modest” burden at this conditional stage by submitting twelve Certifications from opt-in plaintiffs who claimed they worked 50-70 hours per week and spent the vast majority of their time performing non-exempt, low-level tasks that were not managerial in nature.  The Company also submitted statements from managers that showed they performed managerial (i.e. exempt) work and tried to undermine the plaintiffs’ statements but the Court would not allow these manager statements to bear the weight that the Company urged they should be accorded.

The Takeaway

My advice to employers is to test the duties of their management personnel, especially lower level managers, against the criteria in the FLSA regulations.  This can be done via a “self-audit” or internal audit, of which I have conducted dozens.  You also need to check the law of the particular state in which the controversy may be litigated, as the state law may be tougher than the FLSA standards, such as in California or New York.

In a very interesting and off-beat decision, the Third Circuit has thrown out one class of loan officers who alleged misclassification but let stand the lower court’s decision that certified the case as a collective action under the Fair Labor Standards Act.  The case is entitled Reinig et al. v. RBS Citizens NA, and issued from the Third Circuit Court of Appeals.

The panel overruled the decision that had given certification to Loan Officers across ten States who alleged that they were not properly paid for time off the clock.  However, the Court allowed the decision granting collective action certification to stand as it opined that it did not have jurisdiction over that issues as a component of the Employer’s interlocutory appeal.

The Court addressed the issue of “pendent appellate jurisdiction.”  This means that the appellate court is allowed in certain scenarios to assert jurisdiction over issues that are not allowed to be appealed independently but that are “intertwined” with matters over which the Court has jurisdiction.  The Court herein first observed that FLSA collective certification orders are not appealable because they are not final and further concluded that the order in this case was not “inextricably intertwined” with the Rule 23 class certification determination.  Thus, the Court would not exercise pendant jurisdiction over it.

The Court stated that “in so holding, we are persuaded by our prior precedent and the Second Circuit’s well-reasoned decision in [Myers v. Hertz Corp. ] that Rule 23 class certification and FLSA collective action certification are fundamentally different creatures.  Further, judicial efficiency notwithstanding, the myriad problems that could result from exercising jurisdiction in this context counsel against expanding the narrow doctrine of pendent appellate jurisdiction in the way Citizens proposes.”

The legal requirements for conditional certification of FLSA claims is less onerous than securing class certification under Rule 23.  The Court also noted that if it concluded that pendant jurisdiction could be asserted over FLSA certification, then, in the future, a party could “abuse the doctrine” by filing insipid interlocutory appeals so that litigant could get appellate review before a final decision on that issue has been rendered by the district court.

In another (very) interesting twist, the Third Circuit criticized the lower court for not doing its job of specifying the particular classes and claims that were involved.  Indeed, the Court stated that it was compelled to “comb through and cross-reference multiple documents in an attempt to cobble together” the classes and claims that might be amenable to class adjudication.

The Takeaway

Rule 23 claims are harder for a plaintiff to establish as a class.  The danger is that the Rule 23 action is an opt-out, not an opt-in, as a FLSA collective action is; everybody is in except for a handful that might opt out.  It is an interesting twist because I think the Court is right—there would be defendants/employers who would utilize this vehicle as a poor man’s way of getting the collective action certification issue examined sooner rather than later.

Sounds only like good lawyering…

Often, when a class of workers petitions for conditional certification in FLSA collective action, and such certification is granted, it usually is for the entire class being asked for.  Sometimes it is not and when that happens, it is “news.”  That has happened in a recent Pennsylvania case where the proposed class was more than two-hundred workers and the certified class was less than forty.  The case is entitled Hunt v. McKesson Corp., and was filed in federal court in the Western District of Pennsylvania.

The Judge slashed the sought-after class from all McKesson employees in the “grade 103″ category to only the workers in the grade whose job descriptions matched concerning the use and levels of discretion and judgment.  The Judge noted that “this is a conditionally certified collective that is comprised of a group of employees for whom McKesson itself describes the scope of their discretion and judgment identically.  It is McKesson’s grouping of different titles with identical definitions of discretion and judgment (which plaintiff attests were accurate in practice) and McKesson’s identical treatment of that group for purposes of overtime exemptions that makes those job positions sufficiently similarly situated at the conditional certification stage.”

The plaintiff alleged that her duties lacked the requisite discretion and independent judgment needed for the administrative exemption.  The named plaintiff asserted that her job entailed that she “[follow] policies and procedures in analyzing situations or data from which answers can be readily obtained,” and that similar language was found in the description for other grade 103 jobs.  If that was borne out, it certainly would not be discretion as contemplated by the regulations.

close-up of a judge hitting mallet at deskThe Judge made specific note that many of the job descriptions at issue had language different than the plaintiff’s and these differences impacted whether or not discretion was utilized by the workers. The Judge found that “plaintiff continues to lump together ‘readily obtained’ job positions with ‘appropriate action’ job positions, but plaintiff has no evidence to show how those two ‘sub-categories’ of grade 103 are similarly situated to one another other than they share the same grade 103.”  Then, he cut the class.

The Takeaway

This Judge really delved into the minutiae of this matter and made a very reasoned decision that the class being asked for was an overreach.  This could well be a sound tactic for defense counsel to utilize when attacking a class and trying to whittle it down, if not eliminate/defeat it entirely.

It’s a start…

 

It is vital for employers to remember that when non-exempt employees earn commissions, those commissions must be included in the computation of their regular rate when they work overtime. The inclusion of the commissions bumps up the regular rate a little but if this is not done, then these small amounts of money can quickly add up if an employee or, worse yet, a class of employees files a lawsuit. That is exactly what has happened in a recent case involving sales representatives in a class action. The case is entitled Johnson v. Cincinnati Bell Inc. et al., and was filed in federal court in the Southern District of Ohio.

Salesperson holding the receiver of a corded desk phone while dialing in the office.The named plaintiff, Michael Johnson, was a sales representative for less than one year. His theory was that the failure to include the commissions in the regular rate violated the Fair Labor Standards Act. He moved for conditional certification in May and then the parties filed a joint stipulation in which they agreed to the definition of the class as certified and they also agreed on a method for advising potential members.

The court found that the class was appropriate, as there was a low standard of proof that needed for the establishment of a class. The judge stated that she was “satisfied that both the agreement of the parties and evidentiary submissions by plaintiff demonstrate the modest showing necessary to support conditional certification of the proposed class.”

There were affidavits, as well as payroll records which undergirded the theory that these employees, the outbound sales representatives, who worked in the telesales department “had certain standard duties, [were] paid in the same manner and regularly worked more than forty hours per week, and defendants did not include commission payments in the regular rate of compensation for purposes of overtime.”

The Takeaway

This case highlights the complexity of the Fair Labor Standards Act and all of its nuanced regulations. It is very easy for a well-intentioned, good faith employer to make a mistake. If it affects but one employee, that is all it is, a simple mistake, maybe costing a few dollars. If it affects a class, it is a much bigger issue.

Much bigger. And costlier…

The Fair Labor Standards Act is eighty years old this month and commentators strongly suggest that the law needs updating in many areas.

cupcake with sparkler against a blue background, illustrating birthday conceptMy colleague Tammy McCutchen stated that a complaint-driven mechanism defense should be engrafted into the FLSA. She stated that “I think employers should get the opportunity to avoid [some liability] by having in place a system of compliance and taking appropriate action based on investigations, just like they have under Title VII and the ADA and the ADEA.”

In this manner, an employee complaint or issue about wages (e.g. overtime) would/could get resolved quickly and cheaply. Ms. McCutchen (a former DOL official) opines that if such a system is in place, that should work to limit employer liability if the employee ultimately sues. Under her theory, with which I concur, the “penalty” for such an employee who did not avail himself of the internal reporting system would be that he/she would not receive liquidated damages.

Another item on the management side wish list is a heartfelt desire to make securing class certification a little more difficult. In a typical FLSA collective action, the Plaintiff(s) first seek so-called conditional certification, fairly easy to secure, and then, later on, the employer can move to de-certify the class.

It should be harder to get over that first hurdle. Nowadays, plaintiffs use a few certifications, sometimes which are identical, and courts seem satisfied with such a meager showing. When a class is conditionally certified, the stakes and legal fees/costs for an employer rise dramatically. This contingency forces many employers into settlements which they might not otherwise have undertaken.

It should be harder, as perhaps with some multi-part test or standard, rather than a few similar sounding certifications.

Another area of concern and one badly in need of updating is the exemption “question.” For example, the outside sales exemptions emanates from a time when most salesmen were door-to-door or were, literally, outside all/most of the time. Nowadays, many sales are made and sales work done from a computer and a telephone, inside the employer’s place of business. Yet, the regulations still require that the salesman be “customarily and regularly” performing outside sales work. That is but one example. In that regard, reasonable people can differ on how exemption law should be applied, but there certainly is a need for more clarity, no matter which side you are on.

The Takeaway

These all sound pretty reasonable and common sensical to me.

Or is it my perspective?

I have often written about the scourge of Assistant Manager class actions. The employee category is particularly subject to this kind of lawsuit as these workers often perform some non-exempt work and it is unclear many times if they possess and exercise sufficient and proper supervisory authority. A recent case in New Jersey provides yet another example. A federal judge has just conditionally certified a class of Assistant Store Managers who work for Panera Bread. They allege that they were misclassified as exempt. Interestingly, the Court would not certify such classes in Massachusetts and New York.  The case is entitled Friscia v. Doherty Enterprises Inc. and was filed in federal court in the District of New Jersey.

Waitress carrying three platesThe judge concluded that the lead plaintiff Jacqueline Friscia made a “modest factual showing” concerning the alleged misclassification but refused to certify classes in other states. The court stated that “put simply, Friscia has not produced sufficient evidence to show that she is similarly situated to assistant managers in New York or Massachusetts.”

As is typical in these cases, the named plaintiff claims she worked 55-80 hours per week. She also claims that she performed many non-exempt tasks and that these tasks comprised the majority of her work time per week These tasks included preparing food, taking food orders, cleaning the store, working at the cash register and dish washing. Other than her weekly salary of $800, she asserted that she never received overtime for her long hours.

The company took the position that since the named plaintiff worked in only one store, she could not know conditions at other stores or whether the other Assistant Managers were “similarly situated.” The company also contended that there was an arbitration agreement in place and thus the workers could not be included all together in the same class actions. The judge was not impressed by these arguments, finding that the plaintiffs had met the “lenient burden” to receive conditional certification.

The Takeaway

The company can still defeat this class action by making a motion to de-certify the class later on. This would entail taking more discovery, perhaps many more depositions, in an effort to show that there is too much individual difference between the workers across the system to allow for class treatment. This will be expensive and may not be successful.

Or, the company can bite the bullet and settle…

Employers are always trying to cut off the head of a class action, i.e. the named plaintiff, in order to bring the case to an end. What happens when the named plaintiff is gone from the case but some people have opted in? Do they become named plaintiffs, with the case continuing?  The Eleventh Circuit has seemingly answered that question in the affirmative. The court has just ruled that workers who opt into collective actions under the Fair Labor Standards Act only have to file that little piece of paper, the consent form, to then become a named party to the case,  The case is entitled Mickles et al. v. Country Club Inc.

The Elbert P. Tuttle U.S. Courthouse in Atlanta, Georgia, now home to the U.S. Court of Appeals for the Eleventh Circuit.
By Eoghanacht [Public domain], from Wikimedia Commons
Importantly, the ruling is a published one, meaning it is precedential. The panel reversed the lower court which held that the three opt-ins were not properly added to the case and should have been eliminated from the suit after the original plaintiff did not succeed in securing conditional certification and then settled. The Judge who wrote the decision stated that this was a case of first impression.

The Court noted that the FLSA, on its face, buttressed the conclusion that workers who opt into a collective “become party plaintiffs upon the filing of a consent and that nothing further, including conditional certification, is required.” The Court stated that “we conclude that filing a written consent pursuant to [FLSA] section 216(b) is sufficient to confer party-plaintiff status.”

The case was filed in 2014 by a single named plaintiff Andrea Mickles, a dancer at Goldrush. The suit alleged that the company (Country Club Inc.) had misclassified her and other dancers as independent contractors and thus they were denied proper minimum wages and overtime monies. She sought a class of current and former dancers; three other dancers then opted in by filing consents.

The lower court denied the motion to conditionally certify the class, as it was filed beyond the deadline set forth in local court rules for such a motion. There was no mention, however, of what would happen to the three opt-in plaintiffs. The Company then asked the court to specify which individuals would stay in the case. The company claimed the opt-ins had never become named party plaintiffs and thus were eliminated from the case when the conditional certification motion was denied.

The three additional workers claimed they could not be dropped from the case because the conditional certification motion was denied. The lower court held that the three had not been ruled similarly situated to the original plaintiff and had not been joined to the collective action. Then, the original plaintiff settled with the company and the three opt-ins appealed to the Eleventh Circuit.

That appellate court noted that there was no determination made as to the “similarly situated” element for the three workers, as needed to be done. Although opt-ins must be similarly situated to the original plaintiff, as no ruling on this issue had been made, the three employees stayed as parties until that ruling was made; if they were not ruled to be similarly situated, then they would be dismissed from the case.

The Eleventh Circuit therefore ordered that the opt-in cases be dismissed without prejudice so they were free to refile their claims, or proceed with their own suits. The court stated that “the “appellants were parties to the litigation upon filing consents and, absent a dismissal from the case, remained parties in the litigation, Thus, the district court erred in deeming appellants non-parties in the clarification order, which had the effect of dismissing their claims with prejudice.”

The Takeaway

This is a major change in the FLSA litigation landscape and makes it harder for an employer to get a case dismissed or to even settle a case. Yes, it is only one circuit, but the reasoning and rationale may spread to other circuits.

I hope not…

Exemption class actions, i.e. lawsuits alleging misclassification, continue to pop up in different contexts and concerning different classifications. A bank has just agreed to settle a case by paying more than $2 million to put a close to a Fair Labor Standards Act (FLSA) collective action based on a theory that the bank misclassified certain computer/IT workers. The case is entitled Schaefer Jr. v. M&T Bank Corporation, and was filed in federal court in the Southern District of New York.

Network switch and ethernet cables,data center conceptThe settlement will pay almost $2.5 million to more than two hundred IT workers across the country. The parties have filed a joint motion asking that the settlement be approved. The motion notes that the employer denied liability as well as that it even was the employer of the workers. The motion then asserts that the settlement was “reasonable in light of the considerable risk that Plaintiffs face.” Naturally, the motion seeks money for attorney’s fees that would amount to 33% of the gross settlement funds and money for a settlement claims administrator.

The motion provides the rationale for the settlement by stating that “first, although plaintiffs obtained conditional certification, maintaining the collective and certifying a class through trial may be difficult. Defendant would likely argue that the differences among various job titles, departments and other individualized questions preclude class certification and would warrant decertification of the collective. Moreover, defendant could argue that the computer exemption applies to plaintiffs and ultimately convince the court that plaintiffs were properly classified as exempt from overtime pay. Although Plaintiffs disagree, other defendants have prevailed on such arguments in similar cases.”

The theory of the suit was that the bank did not properly pay overtime to technology department network computing analysts and staff specialists. The lead plaintiff, James Schaefer Jr., alleged that he was such an IT worker for several years and was not paid overtime because he was misclassified as exempt.

The Takeaway

These exemption cases prove difficult to win, often times. On the computer exemption issue, numerous titles abound which may or may not connote an exempt classification. A lot of gray here. With that said, the need-for-individualized-scrutiny defense sometimes works. Sometimes it does not and then the stakes for the employer-defendant are dramatically escalated.

Much better to settle…

I blog a lot about working time cases because these are the issues can sneak up on an employer, even the most well intentioned and good faith employer. Travel time is one of these murky, arcane kind of activities that go unnoticed by companies until, often, a lawsuit is filed. Another example emerges. A group of workers who constructed and maintained cellphone towers in several States gave been granted conditional certification in a FLSA collective action based on an alleged failure to pay for travel time. The case is entitled Lichy et al. v. Centerline Communications LLC, and was filed in federal court in the District of Massachusetts.

Silhouette of a cell phone tower shot against the setting sun.The judge certified a class of tower technicians and foremen. These workers can now opt into the lawsuit, which is based on the theory that the company should have compensated them for hours they spent driving company vehicles to work, over supposedly vast distances. The inclusion of foremen in the class, e.g. supervisory personnel, is quite interesting, but the Court found their duties were very similar to the rank-and-file workers and the foremen were working under the identical travel time policy.

The plaintiffs’ lawyer, naturally, applauded the decision, stating “first, the court recognized that slight differences among members of the class do not preclude conditional certification where all class members are subject to the same policy regarding payment of wages  Second, the court explicitly recognized that plaintiffs need not submit affidavits in support of their motion for conditional certification in order to prevail.”

Five tower technicians/lineworkers filed the suit. Their job duties included climbing cell towers, many times in distant locations and installing antennae, radios and cables. The Company mandated that the workers drive together to these job sites. The men were paid their regular hourly rates for the travel time between a meeting point and the job site. However, the Company failed to pay for the travel time returning to the central meeting place unless there were traffic delays or the job location was more than 130 miles from the regional workshop, according to the allegations in the case. The workers seek payment for the time driving back in Company vehicles to the central location. The Company contends that the FLSA does not mandate payment for travel time.

The Takeaway

I wonder why the company would not pay for the travel time back to the meeting place or regional office when the Company did pay for the travel time from the meeting place to the job site. That initial agreement to pay seems to undermine the defense that travel time is non-compensable. Home to work travel time is non-compensable, but when workers must first report to a central location, leave from there to the first job site and travel back to that central location, the travel time then does become compensable.

I bet this case settles…