When an employer is sued in a FLSA class/collective action, a big bone of contention often is the definition of the class and what should or should not be in the notice that gets sent to putative class members.  Often, the Court will direct certain specifics to go in the notice and usually these instructions are followed.  In an interesting and instructive case, an employer is now claiming that the plaintiffs disregarded court instructions on the definition of the class in the notice.  The employer now wants the case dismissed.  The case is entitled Heeg et al. v. United Electrical Contractors Inc. and was filed in federal court in the Western District of Michigan.

The Court defined the class as electricians employed by the Company for three years prior to complaint filing, who did not receive overtime.  The plaintiffs maintained they could include laborers in this group but the Company objected, arguing these workers were not electricians.  In an unusual stance, the plaintiffs also contend there is an open ended time period for the class members.  The Company charges that the International Brotherhood of Electrical Workers has reached out to potential class members about joining the action but claim the union was not authorized to make these overtures and the list of potential class members was improperly provided to the Union, violating the court-imposed protective order.

The Company has also tried to obtain the list of those who joined and the consent forms filed by these class members, but it charges that the plaintiffs’ lawyer refused to turn them over.  Although the Company has now belatedly received the list, it has yet to receive the consent forms.  The Company asserts that “the only logical motivation for Plaintiffs’ eleventh hour attempt to redefine the class and withhold the opt-in information is to thwart the scheduled mediation, needlessly protract this litigation and waste resources.”

The suit is yet another working time, preliminary/postliminary action.  The seven employees who began the case allege the Company did not compensate them for the time they spent collecting tools and loading them onto trucks, before they left for their first job site.  There were also alleged mandatory trainings that were not compensated.  They also charge that their $2 per hour per diem allowances were not included in their regular rates when overtime was computed.  The Company denies the allegations asserting workers are paid for all time they enter and it is their responsibility to put in for this “extra” work.

The Takeaway

This is an interesting case because, usually, the sending out of Notice, after the haggling about what should be in them and the time frames allowed for opting in, is a ministerial, administrative function.  Here, it seemingly was not and we will see where this goes. The lesson for management side practitioners, as I have always said, is be creative and look for any way out of a case.

You might just find one…. .

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