We have blogged a number of cases in which courts have conditionally certified FLSA actions, only to later decertify them when the specter of trial begins to loom. While FLSA decertification cases often involve office or sales employees, as a federal court in Wisconsin recently demonstrated, efficiently resolving FLSA collective actions at trial can quickly become impossible in virtually any industry. (Viveros v. VVP Group, LLC, Case No. 12-cv-129 (W.D. Wis. July 15, 2013).
The lawsuit in Viveros was brought by a group of employees who worked at a meat processing plant in Norwalk, Wisconsin. Specifically, these employees worked in the aptly named “kill” and “boning” departments. Apparently not members of the “”it’s not work if you love it” camp, the plaintiffs brought suit alleging that they were paid for 11 hours of “line time” without regard to their actual hours worked (using 6 a.m. to 6 p.m., with two 30-minute unpaid breaks deducted) even though they were required to perform various unpaid - and admittedly unpleasant sounding - pre and post-shift activities. The Court conditionally certified an FLSA class based on this allegation. The employer later moved to decertify the class.
The Court granted the defendant’s motion for two primary reasons. First, the Court found that contrary to the plaintiffs’ allegations during conditional certification, the evidence showed that employees worked staggered start and end times based on their spot in the production line and also did not take breaks at uniform times. In conducting its analysis, the Court found notable the fact that the plaintiffs left the boning department to begin their breaks at various times, there was no official policy requiring employees to be ready for work at 6:00 a.m., and that the plaintiffs’ testimony that “the last cow was killed at 6:00 p.m.” did not necessarily support their claim of a uniform stop time. Thus, the Court found that because the “line time” method of payment applied differently based on the employees’ positions on the production line, it would be impossible to determine the legality of the payment method across the class.
Second, many of the plaintiffs attempted to have their steak and eat it too by virtue of the fact while their claims were based on an allegedly illegal line time payment policy, the evidence showed that the employer paid them for any work over 11 hours under an “exceptions” policy. The Court found that it would therefore require a review of each individual plaintiff’s circumstances to determine the extent to which they were able to take advantage of the policy.
Therefore, the Court concluded that while there was evidence that some of the class members were not paid for donning and doffing as a result of the “line time” policy, there was also evidence that some class members were paid for this time by virtue of their position on the production line or through the employer’s exceptions policy. Citing the Supreme Court’s Dukes decision, the Court found that the class had to be decertified because the plaintiffs failed to explain how the Court could determine liability without resorting to numerous individualized inquiries. While the Court found it was “unlikely” that the plaintiffs could fix these class issues, it permitted the plaintiffs an opportunity to file a renewed request for certification and to also address concerns that the Court had as to the adequacy of the class counsel.
The Bottom Line: Regardless of industry, it is hardly a rare occurrence for a Court to conditionally certify an FLSA action, struggle to find a happy medium between efficiency and the need for individualized inquiries, and then decertify the class and declare it a job well done.