Opposing FLSA Collective Action Certification: An Overview, by Jesse A. Cripps and Katherine Smith

Posted on 10-28-2016 by
Tags: labor and employment , Lexis Practice Advisor , collective action , FLSA

With class and collective action filings at record levels, and expected to increase again in 2016, it is essential that employers stay informed about the best practices for handling these lawsuits. This article provides an overview and guidance on the unique procedures involved in opposing collective actions filed under the Fair Labor Standards Act (FLSA).

Under Section 216(b) of the FLSA, an employee may initiate a representative action “for and [o]n behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). Unlike class action certification under Rule 23 of the Federal Rules of Civil Procedure, putative class members in a collective action must “opt in” to be bound by the action. Most courts follow a two-step process consisting of (1) notice and conditional collective action certification, and then (2) considering collective action decertification.

The conditional certification stage. The first step is the so-called notice stage, in which the court decides whether potential class members should receive formal notice of the collective action and whether it should conditionally certify a class. This decision depends on whether the plaintiffs have made some demonstration that they are similarly situated. Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214 (5th Cir. 1995), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). Because plaintiffs generally move for conditional certification toward the beginning of a case, the court has “minimal evidence” before it at that time. Courts therefore decide whether to conditionally certify the class using a “fairly lenient standard.” Mooney, 54 F.3d at 1213-14.

Accordingly, employers often face an uphill battle when opposing conditional certification. The opposition brief should therefore focus on the need for the plaintiffs to show “that they and potential opt-in plaintiffs ‘together were victims of a common policy or plan that violated the law,’” Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010), which is a fact-specific determination, Wynn v. NBC, 234 F. Supp. 2d 1067, 1082 (C.D. Cal. 2002). Legal arguments may include the following:

  • The conditional collective action certification motion is premature (if, for instance, a motion is pending on the pleadings or preliminary discovery is necessary)
  • The motion for conditional certification is not sufficiently specific
  • The plaintiff’s evidence is insufficient
  • The proposed notice is deficient

The decertification stage. The second step in the two-step process is the employer’s motion for decertification of the collective action. The employer usually files this motion after substantial discovery. Leuthold v. Destination America, Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004). At the second stage, the court will conduct a more rigorous analysis to make a factual determination on whether the plaintiffs and opt-ins are similarly situated. It weighs:

[W]hether the plaintiffs are employed in the same corporate department, division, and location; whether they advance similar claims; whether they seek substantially the same form of relief; and whether they have similar salaries and circumstances of employment. Plaintiffs may also be found dissimilar based on the existence of individualized defenses.

Zavala v. Wal-Mart Stores, Inc., 691 F.3d 527, 536-37 (3rd Cir. 2012). If the court decides that the plaintiffs are not similarly situated after all, it “may decertify the class and dismiss the opt-in plaintiffs without prejudice.” Leuthold, 224 F.R.D. at 466.

While the specific arguments in the brief in support of decertification will depend on the individual facts of the case, arguments generally should separately address each of the factors that the court should consider as evidence that the class is not similarly situated. For example, arguments can include the following:

  • The plaintiffs failed to identify a single decision, policy, or plan
  • Individual determinations would be necessary to demonstrate FLSA violations among a class
  • The plaintiffs have not submitted evidence that the challenged decision, policy, or plan actually applies to the entire putative class

Jesse A. Cripps and Katherine V.A. Smith are both partners in the Los Angeles office of Gibson, Dunn & Crutcher LLP. Mr. Cripps has handled the full range of labor and employment matters under both federal and state law, specializing in the defense of high-risk, complex and class action litigation. Ms. Smith also represents and advises employers in all aspects of labor and employment law and has extensive experience representing employers in single plaintiff and class action litigation at both the trial court and appellate level.

For More Information

For comprehensive coverage of the FLSA and class and collective actions, click here to visit Lexis Practice Advisor.

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