A recent case for the Western District of New York demonstrates that little is certain in class action litigation. In Omiatek v. Big Lots, Inc.pdf., Case No. 09-CV-0352S(Sr) (W.D. N.Y. Jan. 20, 2011), the court bucked two trends and (1) denied conditional certification (2) of a proposed class that consisted of assistant managers.

A little background: The two-step procedure now used by many courts in FLSA cases requires at least two visits to the question of certification of a proposed collective action. First, the court determines the question of “conditional certification,” under which it requires a lesser showing of whether the proposed class members are sufficiently similarly situated to permit notice. The term is a misnomer because the court is not “certifying” anything, but only authorizing notice to the proposed class and a period of time for proposed members to opt in. Still, conditional certification is often granted and may give the plaintiff a false sense of success and the defendant an equally false sense that it has “lost” the case. Both parties, however, must undergo a time-intensive and at times disruptive set of tasks related to management of the opt-in class.

Afterwards, the court engages into a much more rigorous inquiry as to whether the proposed class of opt-ins can proceed as a class. Even if the plaintiffs pass that hurdle, however, decertification remains a very real possibility. Recognizing this step, and citing the lower standard for conditional certification, many courts have “conditionally” certified cases that, in fact, cannot survive as fully blown collective actions. We’ll call this trend one.

Trend two is the spate of cases over “assistant manager” positions. In many of these cases, plaintiffs’ counsel have successfully argued that the class members for the particular employers are managers in name only and that, in fact, they have no management functions at all. These actions have been particularly successful in California, where the issue of whether the employee’s primary duties are exempt is determined on a quantitative (do they duties take over 50% of the employee’s time) rather than qualitative basis (what’s the most important part of their job). Much of the debate turns on whether the individuals are indeed assistant managers, or whether an inflated title has been given to an employee otherwise dedicated to nonexempt work.

Now, we turn to the Omiatek case. In that case, the plaintiff, a former assistant manager, sought to pursue both FLSA claims and New York state wage claims against the Big Lots retail chain. He moved for conditional certification of the FLSA claim, contending that the chain had a uniform policy of classifying assistant managers as exempt, discouraged hourly employees from working overtime so that assistant managers had to do more of their duties, and (he claimed) were micromanaged by their superiors. So far, so good – the class consisted of assistant managers and the plaintiff was seeking conditional certification.

The magistrate judge further found that another court had considered claims against the same employer, had conditionally certified them, and even had denied decertification when sought be the employer. Even better.

But here the case quickly fell apart. The previous court, after seven days of trial evidence, had reconsidered its prior rulings and decertified the class because the evidence at trial revealed that the duties of the assistant managers varied so much. See Johnson v. Big Lots Stores, Inc.pdf, 561 F. Supp. 2d 567, 588 (E.D. La. 2008). Further, the employer in Omiatek had submitted declarations reflecting that some assistant managers indeed did manage their stores and performed few hourly duties. The diversity in job experiences led the court to deny even conditional certification of their claims. Thus, the court, based on the evidence, denied conditional certification.

The plaintiffs also moved for certification of their New York state claims, but the court found certification inappropriate for much the same reasons.

The Bottom Line: Differences in real life job experiences can defeat even conditional certification.