If someone with too much time on their hands tried to catalogue all of the decisions regarding conditional certification of proposed FLSA class actions, they would likely find that while plaintiffs prevail at this stage more likely than not, the employer’s chances improve either when (1) the claims are for off-the-clock time; or (2) the case was brought in a jurisdictions where courts have become jaded about such requests over classes that are unlikely to survive over the long haul.  A recent case highlights the problems with such claims.

In Hart v. JPMorgan Chase Bank, N.A.pdf., Case No. 8:12-cv-00470-JDW-TBM (M.D. Fla., Dec. 12, 2012), the plaintiffs filed a putative collective action on behalf of approximately 3,000 debt collectors for  JPMorgan.  The Amended Complaint alleged that they had to come in early and stay late to ensure that the appropriate computer software programs were open or closed on the computer equipment they used to perform their jobs, and that they were not paid for that time.  Through declarations, they also alleged various other off-the-clock issues, such as having to work later or through lunch during “crunch times.”

The court’s opinion telegraphs its conclusion from the first few sentences, noting that the proposed class members worked in different geographic areas, under different supervisors, and on different business lines.   As the court delved into the facts, it noted the relatively lenient standard for conditional certification, but also found that fewer than 1 percent of the proposed class members had expressed interest in opting into the case, while the employer submitted evidence that even more did not.  Further, the plaintiffs’ evidence showed that each of the proposed class members complained about a different set of “off-the-clock” issues that departed from the company’s formal policies and would require a case-by-case review of the facts.  The court’s opinion cites a wealth of authority refusing to certify cases, even conditionally, when such an inquiry would be required.

Based on all these factors, the court denied the plaintiffs’ motion for conditional certification. The court’s decision highlights the inherent problems in off-the-clock cases and the reasons why such cases should not be certified.  The good news was that the court recognized these issues going into the dispute and did not issue a knee-jerk opinion certifying the class and causing the parties to spend potentially millions of dollars on a case that was never going to survive decertification.

The Bottom Line:  Another court has recognized that the practical issues inherent in off-the-clock cases make them unsuitable even for conditional certification.