We’ve commented before that while most courts apply a fairly lenient standard at the “conditional certification” phase of Fair Labor Standards Act collective action litigation, plaintiffs tend to have a harder time in so-called “off-the-clock” cases. A recent decision from the Southern District of Ohio reflects that obtaining conditional certification can also be difficult where plaintiffs raise a host of time-keeping and payroll practice issues.

In Rutledge v. Claypool Electric, Inc., Case No. 2:12-cv-0159 (S.D. Ohio, Feb. 5, 2013), the plaintiffs worked as construction workers for the defendant. They sought to assert three sets of collective action claims for wage and hour violations, for (apparently) off-the-clock time, for using compensatory time off in lieu of overtime, and for failing to use the correct base rate in computing overtime. This last claim was premised upon the fact that the employer paid different rates for public and private projects but that, according to the plaintiffs, it tended to pay overtime based upon the lower private rates.

The plaintiffs moved for conditional certification for all three classes, but the Magistrate Judge denied their motion. The plaintiffs appealed to the district court judge all but the denial of the off-the-clock class.

The district court first found that because a motion for conditional certification is not a dispositive motion, the Magistrate Judge’s opinion could not be overturned unless she had committed an error of law or had made “clearly erroneous” factual findings. This standard all but dictated the outcome of the appeal. While the plaintiffs had urged the Magistrate Judge to consider hearsay evidence at the conditional certification stage, she had refused to do so, and the district court found that this did not constitute an error of law.

With respect to the classes, the court first found that while the plaintiffs had introduced evidence that they themselves had been given compensatory time off in lieu of overtime, they failed to demonstrate that there was any class-wide issue and could only point to the conduct of a single supervisor. Similarly, the court found no sufficient evidence of any class-wide policy not to pay overtime at the correct rate. 

Interestingly, in this regard the plaintiffs tried to rely upon an admission contained in the defendants’ answer to the effect that overtime was paid at time and a half at the “basic hourly rate applicable to the work performed by the employees during the overtime hours.” The court found that this response did not admit that employees were paid at different rates during any particular work week.

Finding no sufficient evidence of a common illegal policy, the court upheld the Magistrate Judge’s denial of conditional certification.

The bottom line: Courts are more inclined to deny conditional certification when the plaintiffs rely upon an improper policy or practice, but cannot show that it applied across the class.