As readers of our blog know from prior posts, we have argued successfully before several courts that the Supreme Court’s landmark ruling in Wal-Mart Stores v. Dukes has an important impact on collective and class actions brought under the FLSA and state wage and hour laws. With its July 29th ruling in Dinkel v. MedStar Health, Inc., the District of Columbia’s federal district court joined those courts that have confirmed the application of Dukes to wage and hour collective actions by citing Dukes in denying FLSA and D.C. Minimum Wage Act conditional certification of the plaintiffs’ broad proposed collective. The ruling confirms, among other issues addressed in the court’s opinion, that Dukes provides viable arguments that aid in the defense of plaintiffs’ efforts to conditionally certify putative collective actions based on allegations of only a few.
MedStar owns nine hospitals in the District of Columbia and Maryland. The plaintiffs worked at only one of them, the Washington Hospital Center (“WHC”). At any given time, the court explained, there were nearly 4,000 hourly employees working across WHC’s 200+ departments. Not content to limit their conditional certification bid to employees from the two departments in which they worked, the plaintiffs sought to conditionally certify a collective of all non-exempt WHC employees plus all hourly employees in all departments at MedStar’s eight other hospitals.
The plaintiffs sought to assert two claims under both the FLSA and the DC-MWA on behalf of this proposed collective. The first was a meal break claim based on an alleged automatic 30-minute deduction for lunch breaks. An automatic deduction, in and of itself, does not violate the law. But the plaintiffs alleged that MedStar’s auto-deduction crossed the line because of an unwritten policy under which supervisors and managers “discouraged” and “ignored” employees’ efforts to receive pay for auto-deducted breaks during which they were required to work. The second claim was a uniform maintenance claim, in which the plaintiffs alleged that they and other hourly employees spent hours maintaining their uniforms each week away from the hospitals and “off the clock.”
In Dinkel, the D.C. district court rejected the plaintiffs’ broad proposed meal break collective under both the FLSA and DC-MWA, citing concerns with the plaintiffs’ barebones factual showing in support of their conditional certification motion and with the manageability of the proposed collective. The plaintiffs’ only evidence based on their own “personal knowledge” of a potentially unlawful unwritten policy involved the two departments at WHC in which they worked. For the other 200+ departments at WHC, not to mention the other eight hospitals, the court observed, the evidence was “limited to the existence of an auto-deduct policy, which is not by itself the least bit unlawful,” and plaintiffs’ unsupported assertions were “insufficient to discharge their burden”--even applying the relatively lenient standard for conditional certification.
Furthermore, the court reasoned, cases like Dukes signal that the plaintiffs’ proposed collective would have been objectionable even if their evidence had been more robust. Their claim turned on an alleged unwritten policy, purportedly carried out by supervisors and managers, to block employees’ efforts to be paid for missed meal breaks. Even at the “early stage of proceedings,” the district judge wrote, referring to conditional certification, “the Court cannot turn a blind eye to the fact that such a practice will ultimately turn on the way in which individual supervisors and managers exercised their discretion to manage employees’ meal breaks.” Citing Dukes—which, in announcing a higher commonality standard for Rule 23 class actions, directed attention to a class proceeding’s capacity to generate common answers, not a plaintiff’s capacity to raise common questions—the court doubted “a workable across-the-board approach for such a determination.”
Based on these considerations, the court substantially reduced the plaintiffs’ proposed meal-break collective. Rather than conditionally certifying a collective across all departments of all nine hospitals, as the plaintiffs sought, the court limited it to the two departments at WHC where the plaintiffs worked. While the court also conditionally certified the plaintiffs’ proposed collective on their uniform-maintenance claim, that decision resulted from “the absence of a meaningful opposition from Defendants” and not from any analysis of the facts.
Dinkel is a significant win for employers. The court refused to conditionally certify the plaintiffs’ broad proposed meal break collective because of (1) their failure to show through personal knowledge that they were similarly situated to the group they sought to sweep into the alleged collective; and (2) concerns that the claims of the proposed members of the collective would require inquiries too individualized to adjudicate collectively. The Supreme Court’s mandates in Dukes require plaintiffs to make a factual showing that their proposed collective––even for conditional certification––is manageable and not dependent on individualized proof. Under the teachings of Dinkel, these mandates doom the common practice of plaintiffs to submit a thin factual record, often limited to the named plaintiff’s position, supervisor, facility, department, division, geography, and the like, in support of conditional certification of a collective far broader in scope.