FLSA Decertification: District Courts Write Largely On A Blank Slate

by Proskauer - Class & Collective Actions
Contact

Without any U.S. Supreme Court guidance, and little to none from the Circuit Courts, the trial courts facing FLSA decertification motions are making up their rulings mostly from scratch, and the results are all over the map.  Although courts facing decertification motions generally apply the same three factors to determine if plaintiff pass the FLSA “similarly situated” test, there are cases with almost identical facts that result in disparate and irreconcilable outcomes.  As one judge aptly described the state of the law:

[I]t is difficult to draw consistent guidelines from the case law on how to apply [the three] factors . . . the decertification determination is extremely fact-dependent and appears to be largely in the Court’s discretion.

Seward v. IBM Corp., No. 08cv3976(VB)(PED), slip op., at 31 (Jan. 20, 2012) (emphasis added), adopted in full, 2012 WL 860363 (S.D.N.Y. Mar. 9, 2012).  Class decertification – as well as many other FLSA issues – clearly call out for higher courts’ guidance.

Seward involved off-the-clock claims by IBM call center workers that had been conditionally certified in 2009.  The court granted IBM’s post-discovery motion, however, and decertified the case before trial.  The parties rested their legal arguments on other federal district court decisions from across the country.  The Magistrate Judge conducted a comprehensive analysis of each party’s respective decisions but concluded that they were “very different to reconcile, as they reach different conclusions on relatively similar facts.”  Slip op., at 31-32 (emphasis added).  He ultimately recommended decertification (in a report that the District Court Judge adopted in full), reasoning that:  IBM’s common timekeeping and overtime policies were lawful on their face (and therefore did not advance plaintiffs’ claims); plaintiffs lacked sufficient evidence of any common unlawful practice; and IBM’s defenses would likely be highly fact specific and require individualized testimony.   

In addition to highlighting the absence of, and need for, higher court guidance in this area, Seward is noteworthy for the court’s refusal to order subclasses, and it demonstrates  the importance of plaintiffs raising, and employers objecting to, subclasses at the first instance.  The plaintiffs there had not raised sub-classes, but IBM had objected to the idea when the Magistrate Judge raised it sua sponte at oral argument.  On review by the District Judge, plaintiffs advocated only for subclasses, but the court refused, holding that their failure to argue for subclasses before the Magistrate Judge, coupled with IBM’s previous opposition, meant that the subclass issue had been waived. 

The case also is noteworthy for its very small number of class members (40) who all worked at the same facility – factors that typically would make a decertification attempt difficult.  The court’s decision to decertify appears to have rested largely on the extensive evidence presented by IBM.  In addition to gathering current manager declarations, IBM had deposed 28 of the 40 plaintiffs and elicited written discovery from all 40, through which it obtained significant admissions and inconsistencies in testimony that helped its arguments on decertification.  The outcome suggests that employers should consider deposing and obtaining discovery from as many opt-ins as possible before moving for decertification (provided that business or other reasons do not counsel otherwise).

 

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.

© Proskauer - Class & Collective Actions | Attorney Advertising

Written by:

Proskauer - Class & Collective Actions
Contact
more
less

Proskauer - Class & Collective Actions 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.
Feedback? Tell us what you think of the new jdsupra.com!