The United States District Court for the Middle District of Alabama recently held that store managers of a large retail chain cannot pursue a nationwide FLSA overtime collective action claiming they were wrongfully classified as exempt and, thus, improperly denied overtime compensation.  In Creel v. Tuesday Morning, Inc., M.D. Ala., No. 2:09cv728-MHT, 5/06/13, the plaintiff claimed store managers routinely worked 50-60 hours a week at an Alabama store location and were improperly classified under the executive exemption of the FLSA as most of her job duties were non-managerial.   The plaintiff presented testimony that managers have limited discretion to change store hours, contract with service vendors, purchase supplies, choose merchandise sold, or hire, promote or terminate staff.  She also offered testimony that job duties are dictated by a uniform-company policy and submitted four affidavits from current or former store managers in three states reflecting they worked more than 40 hours per week without overtime compensation.  Plaintiff moved to conditionally certify a national collective action and facilitate class notice.   District Judge Myron Thompson denied the motion, holding Tuesday Morning store managers were not similarly situated.

Applying the two-tiered procedure that district courts should use in certifying collective actions under the FLSA, the court noted that the plaintiffs bore the burden of demonstrating a “reasonable basis” for their claim of class–wide discrimination.  While the standards for determining similarity were recognized as “fairly lenient” at the notice stage, the court reasoned that it should utilize “whatever information it has available at the time” as it would be “illogical and wasteful to all concerned to certify a collective action if the evidence is already sufficient to indicate that a decertification is likely to follow.”  The court held the plaintiff had carried her “low burden” of demonstrating there were other individuals who existed in the proposed class and had a desire to opt-in through her own testimony and the four affidavits submitted.

Turning next to whether the proposed class consisted of similarly situated individuals, however, the court found plaintiff did not carry her burden.  After analyzing prior decisions focusing on the proof required from a plaintiff, Judge Thompson held that the similarly situated requirement could be met “either by showing similarity between job responsibilities and pay provisions of plaintiffs and proposed class members or by providing evidence of a nexus between plaintiff’s claims and the claims of the proposed class.”  He also stated that the “broader and more numerous and complex the collective action the plaintiff wants, the more careful the court must be” and that the court “must be reasonably certain that the proposed litigation is not biting off more than can be chewed.”

The plaintiff sought certification of a national collective action that would include over 1,250 members.  The court held her testimony and affidavits from only four other store managers from only two other states did not “provide an adequate platform from which to make the grand leap to a national collective action.”   Although only one training manual was utilized and store managers were trained all in the same location, the court reasoned it could not “turn a blind eye” to a California appellate court that had decertified a class of store managers for the same defendant after holding the managers performed a variety of duties in significantly different ways depending on the size of the stores, the number of employees at stores, the location of the stores, the configuration of the stores and the amount of store sales.  While noting the decision could have been different if the plaintiff “had restricted herself to stores of only a certain location and size and other limiting characteristics,” the court refused to certify the collective action the plaintiff actually sought.