As we have commented before in this blog, courts considering certification of collective actions under the FLSA often use the two-step procedure generally attributed to the court in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987). Under that procedure, the court first determines whether to “conditionally” or “provisionally” certify the class. This first step typically relies upon a relative showing that the putative class members are similarly situated and is made on an incomplete evidentiary record. If the case is conditionally certified, the court will direct notice the proposed class and permit potential class members to opt into the litigation. Following the close of that period and additional discovery, the defendant typically moves to “decertify” the conditionally certified class. This second motion is decided under a stricter standard (for the plaintiffs) and often results in the class being decertified. A recent case from the Southern District of New York again shows that even large “conditionally” certified classes are being decertified and that the plaintiffs cannot rely simply on uniform policies, but must demonstrate some class-wide illegal policy or practice.

In Zivali v. AT&T Mobility.pdf, Case No. 08 Civ. 10310 (S.D.N.Y. May 12, 2011), the plaintiff was a nonexempt employee working at an AT&T Mobility retail store. He contended that, largely as a result of the company’s time-keeping system, he was not appropriately paid for his wages and overtime. He specifically pointed to issues such as needing supervisor approval for overtime, having to work through meal periods, and having to work “off-the-clock,” issues that he claimed arose because of difficulties in capturing such time in the company’s electronic time-keeping system. He sought to represent a class of all such employees nationwide. In 2009, applying the lower standard, the court conditionally certified the class. See Zivali v. AT&T Mobility, 646 F. Supp. 2d 658 (S.D.N.Y. 2009). Over 4,100 plaintiffs ultimately opted in from over 2,000 AT&T Mobility stores across the United States. As is usual for the plaintiffs in these cases, so far the case was going well for them.

But then comes phase two - the decision whether to decertify the class. Following additional discovery and the depositions of approximately 30 class members, the defendant moved to decertify the class. Applying what it described a “more ‘stringent standard of proof,’” the court reviewed the defendant's submissions. The court found that the plaintiff had the burden under section 16(b) of the FLSA, 29 U.S.C. section 216(b), to demonstrate that the putative class members were similarly situated. It then determined that the electronic time-keeping system challenged by the plaintiffs, as well as the company’s corporate policies, were themselves lawful. This finding was significant because certification under the FLSA requires not simply the existence of uniform practices or policies, but ones that actually violate the law.

Because there was no overarching policy that violated the FLSA, the court concluded that the case would devolve into a series of individual determinations over why particular employees at particular stores might not have been paid the wages they were due. As to claims of off-the-clock time, for example, the court found that each employee’s situation was different. Some received customer calls on off time; others did not. Some managers expected employees to review customer emails on off hours while other did not. The same was true for the other claimed violations. Some employees took their meals without incident or even were able to take them at home, while others reported customer interruptions or other difficulties. Estimates of off-the-clock time ranged from totally de minimus duties to those taking only one or two minutes to more extensive time.

Ultimately, the court determined that “the many fact-specific issues in this case would essentially require 4,100 mini-trials.” Applying the higher, second-stage standard, the court decertified the class and dismissed all of the claims except those of the single named plaintiff.

The Bottom Line: A viable FLSA collective action class requires uniform policies or practices that violate the Act, not simply uniform policies.