Fair warning to our readers – most of the puns in this article will likely be dead on arrival.

It goes without saying that for most of us, the last place we’re likely to be found (literally and figuratively) is inside of a funeral home. For the plaintiffs in Prise v. Alderwoods Group, Inc., Case No. 2:06-cv-01641-JFC (Sept. 9, 2011), however, it was a way of life. The plaintiffs in Alderwood were funeral home workers who initially filed their lawsuit in 2006. They alleged violations of the FLSA with regard to on-call work, overtime preapproval, training for licensure, community work, and meal break work. In the dead of winter, January 2011, the court conditionally certified a class of nine funeral home positions, including apprentice funeral director/embalmer, location manager, arranger, and location administrator. A total of 721 opt-in plaintiffs joined the lawsuit.

Defendant Alderwoods moved to decertify the action on the grounds that plaintiffs failed to meet their burden to demonstrate that they were similarly situated for each of the five pay policies in question. It explained that the class claims should be deep-sixed because there was no single, corporate-wide decision, policy or plan to violate the FLSA, and because the pay policies were administered in a decentralized manner "depending on the individual circumstances at each funeral home location." In other words, every "body" is treated differently.

In light of recent decisions from California and Pennsylvania, the court analyzed whether the class members of each compensation group were substantially similar by examining their: 1) factual and employment settings; 2) various defenses available; and 3) fairness and procedural considerations. With these factors in mind, it did not take long for the court to put the plaintiffs’ claims on ice.

First, not all of the plaintiffs were required to perform community work as part of their job duties. Rather, the defendant "encouraged" such work, but never required it. Similarly, with regard to on-call work, several sample plaintiffs (including the named plaintiffs from Pennsylvania) indicated that they were paid for on-call work—which stood in direct contrast to other plaintiffs from California, who were not. The same was true for obtaining a license to sell “pre-needs” insurance; some plaintiffs testified that they were compensated while they obtained their licenses, while others were not.

Finally, several plaintiffs in Kansas asserted that they were consistently required to work, uncompensated, through their entire meal break or a portion of their meal break. (Giving extra meaning to the phrase, "you can rest when you’re dead.") Simultaneously, several plaintiffs in Washington and Georgia testified that they were compensated for work performed during meal breaks. Indeed, the court noted that the common thread running through plaintiffs’ testimony was that the meal break practices varied not only among plaintiffs, but even for each sample plaintiff viewed in isolation. Thus, after the court’s quick dissection and decertification of their case, plaintiffs were left in dead silence.

The Bottom Line: Engaging a nationwide class for a collective action brings a significant risk to the table for plaintiffs: the more members and states one attempts to include, the greater the chance that a defendant will be able to show substantial differences between class members, particularly when the court considers fairness and procedural issues in its analysis.