Invariably whenever a court is faced with a plaintiff’s request for conditional certification of a collective action under the FLSA, it routinely recites the two-step analysis that courts use in evaluating such requests. The threshold issue in deciding whether to authorize a class in an FLSA collective action is whether the plaintiffs have demonstrated that potential class members are “similarly situated.” Typically, courts require the plaintiffs to show a modest factual nexus between their situation and that of the proposed class members. However, in spite of the modest factual nexus evidentiary standard, courts have not hesitated to deny conditional certification when evidence is lacking.

A review of some recent court decisions give insight into the rationale of courts that find that a named-plaintiff has failed to show that he or she is similarly situated to the members of the putative class.

Assistant store managers. In Guillen v Marshalls of MA, a federal district court in New York found that an assistant store manager (ASM) for Marshalls retail store was not similarly situated to a nationwide class of ASMs he claimed were improperly classified as exempt from the overtime provisions of the FLSA. According to the plaintiff, he and other ASMs were required to perform tasks that rendered them non-exempt and that Marshalls had a uniform expectation of ASM’s duties and responsibilities that applied to all stores nationwide. However, the plaintiff provided no evidence that could plausibly lead to the inference that ASMs nationwide were performing non-exempt tasks, the court concluded, where all of the ASMs who submitted affidavits were employed in the New York City area. Thus, the court agreed with the recent conclusion, in Vasquez v Vitamin Shoppe Industries, Inc, that a geographically concentrated cluster of store managers whom the plaintiff claimed were assigned duties inconsistent with the exempt classification was “too thin a reed to rest a nationwide certification.” Consequently, the employee failed to provide any proof that he was similarly situated to ASMs across the nation.

Cable installation technicians. Cable installation technicians employed by a Comcast Cable contractor were denied conditional certification of an FLSA collective action alleging overtime pay violations ruled a federal district court in New Jersey in Rogers v Ocean Cable Group, Inc. The plaintiffs alleged that they were not paid adequate overtime during certain weeks where they were not permitted to record all of the time in which they actually performed work. They also alleged that they were required to work through lunch and did not receive lunch breaks. Here, class certification was found not appropriate because the named plaintiffs failed to equate their personal situations with other putative class members. While some employees alleged that they could only record 30 minutes of pre- or post-shift work, others noted that they were permitted to record up to one hour. Thus, the court found that there was a lack of a factual nexus between the plaintiffs’ situation and a uniform company policy affecting all workers adversely.

Field auditors. Field auditors for Liberty Mutual Insurance were also denied conditional certification of a nationwide class in an FLSA collective action for unpaid overtime in Yerger v Liberty Mutual Group, Inc. The field auditors worked in three commercial insurance businesses that operated as semi-independent business units. While the field auditors performed similar work, each of the three business units was “a distinct and separately managed” organization. Moreover, they each had different methods of assigning audits, different reporting software, different audit review processes and different timekeeping requirements. Additionally, the units had varying levels of field auditor positions and distinct job descriptions. Consequently, despite the named plaintiff’s assertions that auditors routinely worked more than 40 hours per week and the employer provided remote access to its computer network to facilitate their after-hours work, a federal district court in North Carolina ruled that the plaintiff failed to rebut Liberty Mutual’s evidence that her specific duties were different from the work of other field auditors. Because her job duties were substantially different from the class members she sought to represent, the court denied conditional certification.

HR generalists. In this instance, because the uncontroverted evidence established that a plaintiff’s position was dissimilar from the vast majority of other employees and that only one or two employees performed the work of HR generalists for her employer, her motion for conditional certification of an FLSA collective action was denied by a federal district court in Arkansas in Harris v Southwest Power Pool, Inc. The plaintiff alleged that she was denied overtime compensation when she worked in excess of 40 hours in a week. She also asserted that the employer did not treat any of its employees as nonexempt, that her claims were typical of the proposed class, and that the common issue of the employer’s classification of all employees as nonexempt predominated over individual issues. However, the employer offered uncontroverted evidence that very few of its employees held positions similar to the named plaintiff’s and that the majority worked in positions that required technical knowledge. Despite the employee’s contention that the employer had a policy of misclassifying employees, that fact did not obviate the rule that certification is inappropriate where determining whether putative class members are nonexempt will depend on a fact-intensive inquiry into the duties performed by different types of employees.

While there has been a proliferation of FLSA collective actions in recent years, and the vast majority of those cases move past the initial conditional certification stage, it is far from automatic that plaintiffs bringing claims on behalf of themselves and similarly situated employees will be granted conditional certification by the courts.