We've noted many times that while employees prevail on most motions for conditional certification under the FLSA, employers tend to prevail on the second stage motion for decertification. A recent case reflects that continuing reality, but also highlights weaknesses in the two-stage paradigm that work to the disadvantage employers irrespective of the merits (or lack thereof) of the underlying claim.
In Moody v. Associated Grocers, Inc., Case No. 17-10290 (E.D. La. Nov. 14, 2019), the employee was a warehouse supervisor working in the food industry. Although classified as exempt, he contended that his primary duties, and those of other supervisors, consisted of moving and repackaging pallets, and thus he was actually non-exempt should have been paid overtime. The district court conditionally certified the case under the lower "first stage" standard, and 17 employees with the title of "supervisor" opted in. The defendant then moved to decertify the collective class, asserting that the situation of each of the class members was different.
The court essentially found two problems with the class. First, while all the class members were "supervisors," there were many different types of supervisors, such as inbound, outbound, and dock supervisors. Their testimony reflected that their day-to-day responsibilities were different. Further, because the employer was relying on both the executive and administrative exemptions under the FLSA, those duties had to be examined under both tests, further complicating the analysis.
Second, the court noted that the employer's individualized defenses undercut the efficiencies that a collective action might bring. Because two exemptions were at issue, the employer could assert either or both defenses to prevail. The testimony of the plaintiffs reflected not only that both exemptions might apply, but that duties changed from week to week, requiring a highly individualized analysis. Either, both, or neither might apply in a given work week.
Based on these circumstances, the court found that proceeding as a collective would prejudice all of the parties and that representative proof would only serve to prejudice one party at the expense of the others, and might favor some of the opt-in plaintiffs over others. The court, accordingly, decertified the class.
While this was likely a positive outcome for the employer, the case highlights two problems. First, the lower "first stage" standard is being used in a way that cases that are unlikely (or even obvious) not to survive the second stage are being conditionally certified in the hope that they will settle, prejudicing the employer. Second, as the court noted, the individuals were free to bring their own claims, potentially leading to up to 18 individual cases down the road. Whether the individuals might do so remains to be seen.
The bottom line: Differences in job duties among employees, even those with the same job title, may result in decertification of a collectively certified FLSA class.
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