“As far as overtime, you (like I) can only bill a 40hr work week even though we put in like 60hrs at times.”

This isn’t exactly the email you want to see if you are defending an off-the-clock wage and hour claim, but it was one of several addressed this week by the District of New Jersey in a case in which the court looked past the local bad facts to find that the plaintiffs had failed to establish a common claim affecting all class members nationwide.

In Federman v. Bank of America, Civil Action No. 14-441 (MAS) (TJB) (May 31, 2016), the two plaintiffs were employed by two different contractors providing IT services to the same financial institution. They brought suit against their employers, the bank and various recruiters, claiming that they and others nationwide were being forced to work off the clock. In support of their motion for conditional certification of FLSA claims on behalf of all contract workers nationwide, they relied on the email cited above as well as other local emails reflecting that hours in excess of 40 could not be billed and “[u]nfortunately, that’s how management is . . . .”

In considering conditional certification, the court quoted this evidence, but also found that the plaintiffs had failed to make any showing that anyone other than themselves were being subjected to a limit on billing hours. Significantly, the court found that the defendants’ formal policy required that employees report and be paid for overtime, but that the plaintiffs’ showing simply reflected that their “direct supervisors may not have followed that policy.” The court refused to extend the plaintiffs’ experience across the class and found that the plaintiffs had failed to show that they and the putative class members were similarly situated.

The court also dismissed the claims against the non-contractor defendants, due to a failure to allege facts that they even had knowledge that overtime was being underreported.

The decision in Federman shows that despite the lower standard for conditional certification, some courts will still examine the plaintiff’s showing to see whether a common illegal policy or practice actually exists. This is particularly true in off-the-clock cases because often the “common policy” in fact promotes compliance with the law and what the plaintiffs are actually claiming is that the company had a practice of disregarding its own lawful directives. In this case, the court likely shook off its initial reaction to the unfavorable emails and held the plaintiffs to their proof that the communications were part of a much larger employer scheme.

The bottom line: Courts should deny conditional certification despite evidence of local violations if the plaintiffs cannot tie them to a company-wide practice or policy.