Yet another court has denied conditional certification of an FLSA overtime case. While, for a time, courts seemed to accept motions for conditional certification uncritically, more courts are questioning the plaintiffs' showing even at an early stage. These courts are also going to very purpose behind the two-step procedure and refusing to certify cases on the grounds of judicial economy and efficiency when it appears clear, even at an early stage, that the case will devolve into a series of mini-trials.

Most recently, in Bramble v. Wal-Mart Stores Inc.pdf., Case No. 09-04932 (E.D. Pa. Apr. 11, 2011), a group of "asset protection coordinators" brought suit against Wal-Mart, contending that they had been misclassified as exempt for overtime purposes. The named plaintiffs were from Pennsylvania and Massachusetts, but they brought solely FLSA claims, and sought to represent a nationwide class of persons in their position. This class, the court found, consisted of approximately 5,600 employees working in 3,500 stores across the country.

In seeking conditional certification, the plaintiffs used an approach we now see used in many FLSA cases. Much like the Dukes discrimination case now awaiting decision in front of the U.S. Supreme Court, the plaintiffs relied on the company's uniform nationwide policies. As is the case in most putative class wage and hour cases, they also pointed to the existence of a single job description nationwide as well as standard training materials. They asserted that they were not exempt either as executive or as administrative employees. They submitted their own deposition testimony, that of a handful of peers, and Rule 30(b)(6) deposition testimony from the company about their jobs. There was nothing remarkable about this general approach, which is one that has been used in dozens if not hundreds or thousands of cases. Still, in this case it didn't work.

The court used the two-step approach now most common in FLSA cases, deciding conditional certification under a more "lenient" standard, with a second motion to decertify, if necessary, being decided on a higher standard. It found, however, that even under the lesser standard the plaintiffs had failed to meet their burden.

The evidence submitted by the employer demonstrated that plaintiffs could not meet even the lower burden. The job descriptions did not violate the FLSA and, as found by the U.S. Department of Labor, reflected exempt duties. Thus, the use of uniform job descriptions tended to support rather than undermine the employees' exempt status. By contrast, the job descriptions did not contain the nonexempt functions the plaintiffs claimed they were required to perform. This, incidentally, is a common flaw in the plaintiff's showing at this stage - the plaintiffs must demonstrate a common illegal policy and not simply a common policy. Further, as demonstrated by 23 declarations submitted by the employer, the actual duties performed within the job description varied from store to store based on size, location, and other factors.

Ultimately, the court found that the plaintiffs had not satisfied their burden even for conditional certification. On a common sense note, the court also quoted the United States District Court for the District of Massachusetts in stating that conditional certification under such circumstances would be highly inefficient and contrary to judicial economy: "[L]itigating this case as a collective action would be anything but efficient. The exempt or non-exempt status of potentially [thousands] ofemployees would need to be determined on ... an employee-by employee basis." See Morisky v. Pub. Serv. Elec. & Gas Co., 111 F. Supp. 2d 493, 499 (D.N.J. 2000).

The Bottom Line: More courts are denying even conditional certification on cases challenging exempt status when the plaintiffs rely on what individuals are actually doing rather than a company wide policy that actually violates the FLSA.