Federal Court Decertifies Wisconsin FLSA Class Of Meat Processing "Kill Department" And "Boning Department" Employees

by BakerHostetler
Contact

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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© BakerHostetler | Attorney Advertising

Written by:

BakerHostetler
Contact
more
less

BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.