Just before the pandemic triggered closings across the country, we identified an Illinois case as a good candidate for discussion. As the pandemic has eased, we’re taking the time now to address issues relating to the decision as to whether an off-the-clock case that has been conditionally certified should be permitted to remain as a collective action.

In Meadows v. NCR Corporation, Case No. 16 CV 6221 (N.D. Ill. March 4, 2020), the plaintiffs were hourly employees whose duties related to the servicing of ATMs and registers at customer sites. They brought a collective action claiming entitlement to additional overtime, alleging a nationwide policy requiring that they and those like them were forced to work off-the-clock, focusing in particular on travel to customer locations.

Following the now-familiar pattern, the district court applied a light standard at the conditional certification stage, conditionally certified the class, and 1,600 class members opted in. When the court turned to whether the case should remain as a collective, however, the problems with the case became apparent.

First, the plaintiffs had identified two sets of policies, the employer’s handbook and a “Five Star” program as the alleged nationwide policies justifying collective treatment. The handbook, however, flatly banned off-the-clock work and actually prohibited a series of actions that might result in employees not being paid. The “Five Star” program was a management incentive plan that the plaintiffs alleged encouraged managers to encourage off-the-clock work. Apart from other issues, the court made the interesting observation that such a policy was “sometimes” sufficient to support conditional certification, but fell short of what full certification required. More about that in a minute.

That left anecdotal evidence about class members who claimed to have been asked, required or incentivized to work off the clock, but the court found that the differences among the stories demonstrated just why the situation of each plaintiff was different. The court also saw no viable way of sampling or statistical analysis and noted issues with most of the named plaintiffs refusing to appear for their depositions, a not-uncommon occurrence. Finding insufficient evidence of a class-wide illegal policy, the court decertified the case.

While this was certainly a good and welcome result for the employer, the Meadows case again demonstrates the problem with the two-step collective action paradigm. There really wasn’t an illegal policy, an issue that should have been apparent at the first stage and even a few additional questions would have revealed that with abundant clarity. Conditional certification under these circumstances was actually highly inefficient, consumed years of litigation, and potentially will now impose on this court and others countless individual cases.

The bottom line: Off-the-clock cases make poor candidates for collective action treatment, but a defendant may have to fight the matter through decertification to prove it.