Plaintiff Given a Bitter Pill to Swallow in Vitamin Shoppe
Just as Harry Potter or Transformers will rule over the summer box office, the Supreme Court’s decision in Wal-Mart v. Dukes will undoubtedly reign supreme over the employment law class and collective action discussions for the summer of 2011. But even amidst the big-budget thrills and headlines of Lord Voldemort or Dukes, other movies and decisions of note still slip through under the radar. Such is the case with Vasquez v. Vitamin Shoppe Industries, Inc.pdf Case No. 10 CIV 8820 (LTS) (THK), which the Southern District of New York handed down earlier this week.
Plaintiff Vasquez moved the conditional certification of a nationwide class of Vitamin Shoppe store managers for failure to pay overtime under the FLSA. His argument hinged on the allegation that he was misclassified as exempt, based on his contention that he spent 80 percent of his time performing non-managerial tasks. (Incidentally, while such an allegation could be problematic for the employer under California law, it is far from fatal under federal law, which looks to the importance of duties, rather than the time spent on them to determine the primary duty). To support his claim for conditional certification and class notice, plaintiff submitted his own personal declaration and copies of his paystubs. Although he averred that he had “personal knowledge” of other store managers who performed the same work, he could not identify any by full name, nor offer any details regarding what duties they performed. Only later, in his reply brief, did the plaintiff finally offer a modicum of more detail, including generalized descriptions of what non-managerial tasks the other store managers performed.
The defendant, however, decided that when it came to its opposition, “more is more.” For every measure that plaintiff was sparse in his pleadings, Vitamin Shoppe added a voluminous record, consisting of corporate documentation confirming managerial control, declarations from multiple store managers in several states, and descriptions of the managerial tasks the store managers were required to, and did in fact, perform.
In reaching its decision, the Southern District acknowledged that plaintiff’s burden at the conditional certification stage was minimal. Even with that low burden, however, the court emphasized that certification was “not automatic.” The court reiterated that plaintiff must prove that he and other potential plaintiffs were subject to a common policy or plan that violated the law. Simple, conclusory allegations were not enough. Taking into account the plaintiff’s declaration and evidence, which relied almost entirely on his own personal experience, the court found the plaintiff fell short of meeting his burden. The court described its reasoning in plain terms: “The logic of Plaintiff’s argument that he is entitled to nationwide class certification appears to be the following: he has identified a handful of SMs whose predominantly non-managerial duties belie their executive exemption. All SMs are exempt. Therefore, all SMs are misclassified.” This misses the mark. Mere classification of a group of employees as exempt under the FLSA is not enough, the court explains.
Ultimately, the plaintiff did not go home empty-handed. While the court refused to grant a nationwide class of store managers, it did certify the managers at the seven stores that plaintiff mentioned and testified regarding in his reply brief.
The Bottom Line: A lenient standard at the conditional certification stage does not mean conditional certification is a “guarantee.” The plaintiff must show more than personal knowledge and a single declaration to get a nationwide class.