It has been a good few weeks for employers in the satellite dish industry.  Just last week, we wrote of the case of Espenscheid v. Directsat USA, LLC.pdf, Case No. 09-cv-625-bbc (W.D. Wis. May 23, 2011), in which the court decertified a class of satellite dish technicians only days before trial.  In that case, the court, despite repeated earlier rulings in favor of the class, concluded that the actual trial of such a case would be unwieldy.  Only a few days later, in Delano v. MasTec Inc.pdf., Case no. 10-cv-00320-JDW-MAP (M.D. Fla. June 2, 2011), a different district court denied even conditional certification of a similar class.

In Delano, the plaintiffs were former installers of satellite dishes who were paid primarily on a piece-rate basis.  They contended that the company encouraged the underreporting of hours by requiring pre-authorization of overtime (which was never granted) and withholding work assignments if it appeared that a technician was nearing 40 hours in a given work week.  These measures, of course, were lawful, but the plaintiffs contended that the company was aware that the technicians were working more hours than they were reporting.  They submitted numerous declarations to the effect that supervisors "must have been aware" that the technicians were working overtime hours due to the company's scheduling and reporting structures.  A handful of declarants asserted that mostly unspecified supervisors directed them not to report over 40 hours no matter how much they worked.  Based on this evidence, the plaintiffs moved for conditional certification and notice to the class.

The Middle District of Florida, like other courts in the Eleventh Circuit, follows the two-step procedure for certifying collective actions under the FLSA.  The court recognized that the plaintiffs' burden at the initial notice stage was light, but also that it was not “invisible.”  It further noted the requirement in that court for the plaintiffs to demonstrate that other, similarly situated employees wanted to opt in.  Ultimately, the court found that the plaintiffs failed to satisfy even the lesser burden because few technicians had expressed a desire to join the case, and many of the employees were subject to arbitration agreements that would have limited or barred their participation.  The court’s opinion also suggests fundamental problems with the plaintiffs’ case in that the company’s formal policies demanded adherence to the FLSA, while the plaintiffs’ proof of an over-arching practice consisted of anecdotal evidence from different facilities that together did not rise to the level of a state-wide employment practice.  It concluded that even conditional certification was inappropriate.

Incidentally, the court also noted during the course of its opinion - quite correctly - that the term “conditional certification” is a misnomer.  It is simply an order directing notice to the proposed class.  The "class" cannot be certified until there are opt-ins because section 16(b) of the FLSA, 29 U.S.C. section 216(b), provides that no one can be made a party without their consent.

The Bottom Line:  An overtime class should not be conditionally certified absent employees who are similarly situated, have claims they can assert, and actually want to join the litigation.