Courts routinely note the lighter burden of proof for conditional certification of FLSA cases, but oftentimes seem to allow certification based on little or no proof at all.  A recent case from the Eastern District of Arkansas reflects that at least some courts will hold the plaintiff to that lesser evidentiary standard.

In Farnsworth v. Welspun Tubular LLC.PDF, Case No. 4:11-CV-00619-DPM (E.D. Ark. Aug. 16, 2012), six plaintiffs all worked in the same defendant and were reclassified from exempt to non-exempt by the employer.  They brought suit based upon the logic that since their duties had not changed, and since the employer had reclassified them, they must have been misclassified to begin with.  They sought to represent not only the employees in their department, but all salaried employees of the employer.  In support of their motion for conditional certification, one of the named plaintiffs submitted a declaration asserting his belief that at least 45 other employees were similarly situated.

The district court was unimpressed by this showing.  Although it described the plaintiffs’ burden as “modest” and “light”, it found that the plaintiffs had failed to meet even that showing.  In particular, the court found no sufficient evidence of “an unlawful, companywide policy,” quoting Saleen v. Waste Management, Inc., 649 F. Supp. 2d 937, 941 (D. Minn. 2009).  Because the plaintiffs had failed to make the requisite showing, the court denied conditional certification.

In another case, Buckland v. Maxim Healthcare Services, Inc.pdf, Case No. 2:11-cv-08414-JST-JEM (C.D. Cal. Aug. 27, 2012), a California district court similarly denied motions for both class certification under Federal Civil Rule 23 and section 16(b) of the FLSA for claims of alleged wage underpayments for a proposed class of nurses. The district court found that the plaintiffs failed to show commonality under Rule 23(a)(2) and also failed to meet the “lenient” standard for conditional certification because, apart from evidence relating to the named plaintiff, the court found insufficient proof of “a single illegal policy, plan or decision.”  Rather, the court found that the plaintiffs had only shown potential problems with the named plaintiff’s paychecks coupled with general criticism that the employer’s system for tracking time for the class members “wasn’t working.”

Both cases reflect that while the showing for conditional certification may be “modest,” “light,” or “lenient,” it still requires proof of illegal conduct that applies across the entire class.

The Bottom Line:  Some courts will continue to deny conditional certification when the plaintiffs fail to make an adequate showing of a class-wide illegal policy.