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Application of same pay practices to all employees not enough to bind collective action

April 21st, 2016  |  Ron Miller

Collective actions alleging violations of the minimum wage and/or overtime provisions of the FLSA are one of the most common employment disputes faced by employers. As courts often quote, the hurdle for a plaintiff to secure conditional certification of such claims is “modest.” But, courts usually apply a two-step analysis to determine whether an action should be certified. This second step typically occurs after the completion of discovery. At that juncture, so-called decertification, the court examines the evidentiary record to determine whether the “opt-in” plaintiffs are, in fact, similarly situated to the named plaintiff.

So what does an employer have to show to have a court decertify a collective action? In a recent case, Harrison v. Delguerico’s Wrecking & Salvage, Inc., a federal district court agreed with an employer’s assessment that not one of the opt-in plaintiffs in a collective action had a job similar to that of the named plaintiff. The court pointed out that in view of the numerous differences and few similarities between the named plaintiff and the opt-in plaintiffs, the named plaintiff failed to satisfy his burden to show that he was similarly situated to the opt-in plaintiffs.

Factual analysis. In Harrison, the court granted the named plaintiff conditional certification of an FLSA collective action alleging that employees were misclassified as independent contractors and denied overtime compensation. Subsequently, the parties engaged in discovery and other employees opted into the lawsuit. Following discovery, the employer filed a motion for decertification of the collective action. Specifically, it claimed that not one of opt-in plaintiffs had a job similar to that of the named plaintiff.

In light of the discovery the court was required to perform “specific factual analysis” of the named plaintiff’s claims, and the workers who have opted into the suit to determine whether the plaintiffs have satisfied the “higher level of proof” necessary to maintain certification.

Similarities. The court pointed out that at first glance, a few of the factors used by the Third Circuit to support a collective action seemed to unite the named plaintiff and the opt-in plaintiffs. However, the numerous differences between the class members outweighed those similarities and supported a holding requiring decertification of this FLSA collective action.

The named plaintiff worked primarily as a truck driver. Consequently, the employer planned to bring as a defense that the he fell under the Motor Carrier Act exemption. Further, the employer argued that the named plaintiff can contest this defense on “issues relating to vehicle size of some vehicles he drove, how much intra- or interstate travel took place, and other driving related arguments.” With respect to the opt-in plaintiffs, they held such positions as mechanics, secretary, yard maintenance worker, driver helper, and recycling sorter.

Although the fact that the employer applied the same policy to all employees was material to the court’s analysis, it noted that the named plaintiff’s argument that such a situation was dispositive was misplaced. Multiple courts have found that plaintiffs were not similarly situated even though there was a single policy that applied across the board to all the employees in a FLSA collective action. Rather, an employer policy not to pay overtime wages is just one factor that will be considered among various other factors in determining whether plaintiffs are similarly situated.

Job dissimilarities. One of those remaining factors is whether “the plaintiffs are employed in the same corporate department, division, and location.” Here, the named plaintiff made no showing that his job responsibilities were the same or similar to those of the remaining members of the proposed class, or that opt-in plaintiffs could properly be classified as non-exempt employees. The court agreed with the employer that job dissimilarities favored decertification in this action, and that the named plaintiff has failed to establish in anyway how the plaintiffs’ jobs were similar enough to establish a factor in favor of certification.

Individualized defenses. Although the named plaintiff and opt-in plaintiffs all worked at the same location, their job titles and responsibilities varied greatly. In fact, not one opt-in plaintiff even alleged a job position similar to the named plaintiff. Moreover, these various differences in job duties created a situation where certain defenses were applicable to individual claimants based on their unique duties and responsibilities. Here, the employer pointed to defenses regarding the exempt status of some plaintiffs, and that the claims of some employees may be precluded by the statute of limitations. These individualized defenses swung the pendulum toward the court finding that decertification was appropriate.

Consequently, the court concluded that in view of the numerous differences and few similarities between the named plaintiff and the opt-in plaintiffs, the named plaintiff failed to establish that he and the opt-ins were similarly situated.

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