A federal court recently decertified a proposed FLSA collective action based on allegedly uncompensated work performed during meal periods.
In Aguilera v. Waukesha Memorial Hospital, Inc., a group of certified nursing assistants and housekeepers alleged that their employer subjected them to a common policy of requiring them to perform unpaid work during their meal breaks. No. 13-C-1245 (E.D. Wis. June 18, 2015). After the court conditionally certified the proposed FLSA collective action, the employer moved to decertify the collective action on the grounds that the employees were not “similarly situated,” as required by 29 U.S.C. § 216(b).
Of the 26 plaintiffs who opted-in to the collective action, only 17 submitted declarations in which they asserted that they were required to monitor communication devices during their meal periods. They also asserted that because they could not remove their communications devices from the employer’s premises, they believed that they could not leave the employer’s premises during the meal periods. In contrast, one of the plaintiffs testified during her deposition that she rarely received calls during her meal periods and that she understood that she could leave the premises. The other eight plaintiffs did not submit any evidence to the court.
The court determined that the case could not proceed as a collective action under the FLSA. The court stated that “there is no hospital-wide policy that dictates how or how often a housekeeper or CNA must use his or her communication device during a meal period,” and that, instead, “[s]uch usage seems to vary based on shift, department, and supervisor.” The court determined that “there is simply no way to resolve the claims of each class member without independently establishing the facts that apply to that plaintiff and then determining whether his or her use of a communication device during a meal period qualified as work.” The court further explained that:
Even if the experiences of some of the other class members were similar to the experiences of the named plaintiffs, such that the jury needed to answer the question of whether how they used their communication devices during meal periods qualified as work only once, at the very least the other class members would need to testify to establish that they used their communication devices in the same way as the named plaintiffs. And almost certainly every class member will have had at least slightly different experiences, which means that the jury will likely need to separately determine for each class member whether his or her use of a communication device during a meal period qualified as work.
Because of the individualized inquiry that would be required for each plaintiff, the court held that the claims could not be resolved on a representative basis. However, even though the case could not proceed as a FLSA collective action, the court held that the 17 plaintiffs’ meal break claims could be joined and tried together as separate individual claims.
Takeaway: Demonstrating the individualized issues that will need to be determined for FLSA claims – such as meal period claims – is helpful to defeating certification of an FLSA collective action.