Assistant store managers at Home Depot have such great discrepancies in how they perform their jobs that they are not similarly situated for purposes of an FLSA collective action, according to a decision issued on February 15 by Judge Peter G. Sheridan of the U.S. District Court for the District of New Jersey. In Aquilino v. Home Depot USA, Inc., the court decertified a conditional collective action of assistant store managers after finding that the Plaintiffs failed to meet their burden of establishing that they were similarly situated to some 1,500 opt-ins who had joined the litigation.

The assistant managers first brought suit in 2004 alleging they were misclassified as exempt from FLSA overtime requirements. Following consolidation of two similar cases, the Magistrate Judge in 2006 granted conditional certification of a nationwide opt-in class. Notice was sent to nearly 13,000 current and former assistant managers. After deposing Opt-Ins, Home Depot moved to decertify.

The court noted that, while the standard for showing that plaintiffs are "similarly situated" to other employees is "fairly lenient" at the beginning of litigation, the burden is much more onerous after discovery is mostly complete. The Aquilino plaintiffs ran into trouble at this secondary phase, when the court examined various factors, including the disparate factual and employment settings of the individual plaintiffs; the various defenses available to the defendants; as well as fairness and procedural considerations.

The court found each factor weighed in favor of decertification. Significantly, it was apparent from the deposition testimony that job responsibilities and duties varied among the Opt-Ins. According to the court, these variations were “evident in the type of exempt work the Opt-Ins performed, the extent of the [Opt-Ins’] authority over subordinate employees, and the amount of time that the Opt-ins spent performing exempt work.”

Plaintiffs were unsuccessful in their attempt to defeat decertification by relying on Home Depot’s decision to classify the position of assistant manager as exempt. The judge noted that courts had previously made clear that “merely showing that the employer classified a group of employees as exempt is not sufficient to establish that [those] employees are similarly situated for purposes of an FLSA collective action.”

Finally, Plaintiffs sought to maintain subclasses based on their claim that Home Depot’s blanket policy of classifying assistant managers as exempt is unlawful because Home Depot never tested or analyzed the daily activities of the position before determining it was exempt. The court rejected this argument, noting that the Plaintiffs cited no authority for it and stating that if evidence of the uniform classification of the position is not sufficient to prove the plaintiffs are similarly situated, then such evidence would also not support creation of a subclass.

Aquilino is a welcome development for employers, and is further reason for defendants to "keep the faith" that a case will not necessarily proceed on a collective basis just because it is conditionally certified at an early stage.