Conditional Certification does not come automatically : FLSA Collective Actions

Courts usually grant motions for conditional certification in Fair Labor Standards Act (FLSA) collective actions. Section 216(b) of the FLSA explains this by allowing actions to be brought “on behalf of . . . other employees similarly situated” who consent to join the suit. However, in order to understand the “similarly situated” employees, federal courts developed a two-stage certification. The first stage is that of conditional certification, according to which if the court makes a preliminary determination about a complaint having defined a group of similarly situated employees, notice of that suit is sent to this particular group of employees, who may further join the action by returning a signed consent form to the court.

Considering the grant of these motions, some employers do not even oppose these motions, which may prove harmful for them as has been evident recently in two decisions. These U.S. District Courts for the Southern and Eastern Districts of New York decisions indicated that an employer has a chance to defeat the motions or, at least, narrow their scope. See Mata v. Foodbridge LLC, 2015 WL 3457293 (S.D.N.Y. June 1, 2015), and Anjum v. J.C. Penney Co., 2015 WL 3603973 (E.D.N.Y. June 5, 2015). In both the cases, the courts discussed the “lenient standard” with respect to the “similarly situated” employees application, thus indicating that it only a “modest factual showing” was required.

Plaintiffs in both the cases were non-exempt employees claiming violations of the FLSA and New York Labor Law, against their employers who failed to pay them overtime. In Mata, although the court acknowledged that a single declaration may provide enough evidence for a court to grant a motion for conditional certification, yet in the lack of sufficiency of evidence, “conditional certification [was] inappropriate at this juncture.” The court determined that “the declaration actually submitted by Plaintiff in support of his motion does not suffice.” Although the plaintiff attested that he observed other employees working, but provided “no actual support demonstrating knowledge of a common scheme impacting the diverse array of employees” he sought to include. The plaintiff also failed to include sufficiently detailed descriptions of his observations and discussions with co-workers.

In Anjum too, although the court concluded that the plaintiffs satisfied their burden to demonstrate that sales associates were similarly situated, they presented “no firsthand evidence” of violations at any other stores. The only evidence relied on were hearsay and their “belief” that thousands of employees in employer’s other stores were subject to the same unlawful policies. Accordingly, the court certified the collective action, however, limiting its scope to sales associates working in the Staten Island and Manhattan stores, and excluding thousands of employees working in employer’s other 45 locations.

Though courts are of the view that the burden of proof at this stage is low, but “it is not non-existent.” Consequently, employers should be alert and must not consent to conditional certification that often.



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