Be Careful What You Wish For: Federal District Court Uses Employer’s Desire For A Younger Work Force Against It In Conditional Certification

Seyfarth Shaw LLP

Seyfarth Synopsis: The U.S. District Court for the District of Kansas recently reaffirmed the lenient standard courts utilize when deciding a motion for conditional certification of a collective action brought under the Age Discrimination in Employment Act (“ADEA”).  In Wood et al., v. Learjet et al., No. 18-262, 2021 WL 2351040, at *1 (D. Kan. June 9, 2021), the Court conditionally certified a collective action of former employees over 40 years old by relying on alleged statements from Defendants’ managers and executives expressing their desire for a younger workforce.  The case is a must read for all employers as well as a reminder that executives and managers need to exercise caution when they communicate with employees about their future workforce plans.

Case Background

Plaintiffs, two former aerospace engineers employed with Learjet, filed a collective action lawsuit under the ADEA alleging that Defendants had engaged in a pattern or practice of age discrimination by systematically terminating older workers to reduce the age of the workforce.

The crux of Plaintiffs’ allegations was that Defendants “developed a plan or program to reduce the average age” of the workforce.  Id. at *2.  Specifically, Plaintiffs alleged that, in 2015, Defendants began openly discussing that the average age of the workforce was over 50 and that Defendants “would work hard to reduce the average age.”  Id.  Plaintiffs, as well as the individuals who provided declarations in support of Plaintiffs’ motion for conditional certification, also asserted that Defendants’ executives discussed how Defendants needed more “younger, inexperienced” employees and contractors and fewer older, experienced employees and contractors.

From there, Plaintiffs argued that Defendants started methodically terminating or demoting older employees and replacing them with substantially younger employees.  In most cases, Plaintiffs alleged that Defendants informed the affected employees that the decision was not based on job performance and, in many cases, the removed employees were replaced by significantly younger employees whom the removed employees had previously trained.  Plaintiffs further alleged that some older employees were also placed on arduous Performance Improvement Plans (“PIPs”) with subjective requirements that led to their demotion or termination.

After the parties conducted some initial discovery on Plaintiffs’ claims, Plaintiffs moved for conditional certification of a collective action under the ADEA, which adopts the collective opt-in mechanism of § 216(b) of the Fair Labor Standards Act (“FLSA”).

The Court’s Decision

In determining whether to certify a collective action under the FLSA, the Tenth Circuit has approved a two-step approach.  First, in the initial “notice stage,” the court “determines whether a collective action should be certified for purposes of sending notice of the action to potential class members.”  Id. at *6 (internal citations omitted).  The initial notice stage requires nothing more than substantial allegations that the putative collective action members “were together the victims of a single decision, policy, or plan.”  Id.  The notice stage standard is very lenient and very often results in conditional certification of the collective class.

In response to Plaintiffs’ motion to conditionally certify the collective action, Defendants argued that Plaintiffs’ motion should be reviewed under a more stringent standard of review because the parties had completed some “pre-certification” discovery.  However, neither the Court nor Defendants could cite any pertinent case law authority in Kansas employing a heightened scrutiny in such a context, and the Court rejected Defendants’ argument and applied the lenient notice standard.

Despite the standard applied, Defendants argued that Plaintiffs had not alleged a common plan or scheme of age discrimination such that conditional certification would be appropriate.  Instead, they argued that Plaintiffs simply described separate, independent employment decisions not bound together by a single decision, policy, or plan.  The Court disagreed.

The Court found that Defendants’ repeated statements about wanting to reduce the age of its workforce, in conjunction with its subsequent terminations and demotions of older employees, sufficiently indicated a common plan or scheme for purposes of conditional certification.  In support of their complaint and motion, Plaintiffs submitted six declarations from older workers previously employed by Defendants.  All six testified about the comments regarding the age of the workforce and the subsequent employment actions involving older workers.  For example, four of the declarants were placed on a PIP with what was described as subjective criteria, and all four were eventually terminated for failing to meet the requirements of the PIP.  In response, Defendants argued these terminations each had individual factual differences that prevented conditional certification, but the Court rejected these arguments at the initial notice stage.  Taking all of the Plaintiffs’ evidence into account, the Court conditionally certified the collective action and ordered notice to be sent to all potential collective action members.

Finally, Defendants argued that Plaintiffs could not represent all individuals over the age of 40 at the time their employment ended, because there were factual differences between why each potential collective action member was terminated.  Defendants argued there were employees in the proposed collective action definition that were terminated for performance reasons, and those people should be excluded.  While the Court acknowledged Defendants’ argument may have merit, it refused to narrow the collective action definition at this early stage, again punting a ruling until the second stage of certification.

Implications for Employers

This case is another in a long line of examples of the leniency with which courts will evaluate conditional certification.  The default for many courts is to conditionally approve a collective action and deal with any real issues at the second stage of certification.  In light of this leniency, companies should make sure to prepare robust defenses to oppose conditional certification but also establish a detailed path to supporting such defenses at the second stage of certification.

Additionally, this case is a reminder that all executives should be aware of the impact their words may have on future lawsuits. Indeed, Plaintiffs’ reliance on Defendants’ own words and presentations about the need for a younger workforce in this case pushed the Court towards conditional certification.  Accordingly, detailed training on these issues is a must for all executives and managers.

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.

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