Plaintiffs in many overtime cases argue that they were forced to work “off the clock” because the volume of work they were given was so great. In a recent case, the employees did one better and argued that the combination of volume and time standards forced them to hire their own helpers to get the job done.
In Wallace v. NCL (Bahamas), Ltd.pdf, Case No. 09-21814-CIV-JORDAN (S.D. Fla. Dec. 30, 2010), the plaintiffs were stateroom stewards for Norwegian Cruise Lines. They asserted that the cruise line assigned unreasonable work and deadlines, including, among many others, requiring that they clean upwards of 30 cabins in as little as three hours. The picture they painted of working life on a cruise line did not match the glossy brochures one sees in advertising circulars. Instead, it was more reminiscent of the shipboard plantation mentality painted so vividly by author David Foster Wallace in his famous (or maybe infamous) essay “A Supposedly Fun Thing I’ll Never Do Again.” As a result of what they described as impossible demands, the plaintiffs asserted that they were forced to hire helpers to complete their jobs on a timely basis.
Earlier in the case, the district court denied summary judgment for the employer, finding questions of fact as to whether, in fact, the jobs could be completed without helpers. Apparently emboldened by this order, the plaintiffs moved for class certification. The Magistrate Judge, however, recommended that the motion be denied and the district court concurred.
Interestingly, the court noted its own prior order finding questions of fact as to whether the job could be performed without a helper. Still, the court found, the determination of whether and why each steward hired a helper would require a highly individualized inquiry. Some stewards were able to complete the job without the aid of a helper. Others hired helpers for personal reasons, such as to help out a family member.
The court noted other problems with the proposed class, such as locating the 500 or so class members now scattered across the globe and shifting positions by the plaintiffs on their ability to return to Florida for depositions. The court ultimately rejected the plaintiffs’ proposes class action trial plan, which it found not to resolve these issues, and denied certification. Bon voyage class claims!
The Bottom Line: A uniform employer policy, even one found to be arguably oppressive, won’t justify certification if the impact of that policy still requires an individual inquiry.