A class of Loss Prevention Managers are suing their employer in a Fair Labor Standards Act collective action, contending they have been incorrectly classified as exempt. Their cause has advanced a step, as a federal judge has just granted conditional certification to their proposed class. The case is entitled Templeton v. Fred Meyer Incorporated and was filed in the U.S. District Court for the District of Oregon.

As I have written many times, the essence of a collective/class action is that the employer has an overall policy or practice that applies to all allegedly similarly situated employees. The plaintiffs here allege just that, asserting that the Company had a single policy, consisting of giving all of them the same title and, more importantly, job responsibilities and that all of the plaintiffs worked more than forty (40) hours per week. As they were classified as exempt, they did not receive overtime and there is the crux of the matter.

The Company had opposed the conditional certification motion, contending that the Loss Prevention Managers were not similarly situated. That essentially is the only defense, i.e. that individual scrutiny is necessary because there is not an overall/common policy or practice.

The judge, however, disagreed. “It is premature at this early stage, however, to resolve that factual dispute primarily because plaintiff has not yet been provided with discovery sufficient to test defendant's contrary assertion that other LPMs are not similarly situated to plaintiff;” stated the Court. The judge also noted that “moreover, it is speculative to presume LPMs who performed their jobs differently from plaintiff will, in fact, opt-in to this collective action if given notice.”

There is no dispute that these workers all worked more than forty hours per week. The lead plaintiff, Templeton, claimed that not only did he work sixty (60) hours per week. Indeed, the Company itself had a policy (according to a certification submitted by the plaintiff) requiring that Loss Prevention Managers to work at least forty-eight (48) hours week. The Company claimed the protection of the administrative exemption for these workers, asserting that they regularly utilized discretion and independent judgment in the performance of their duties.

Again, the administrative exemption is very tough to prove, especially on the discretion and independent judgment prong. If these employees follow established regimens and protocols and make decisions but within defined contours and limits, they are using skill and experience, not discretion and independent judgment.

Interestingly, there is a United States Department of Labor Opinion Letter holding that Loss Prevention Managers are exempt under the administrative exemption.