The District Court for the Southern District of New York refused to conditionally certify a collective action under the Fair Labor Standards Act (“FLSA”) acknowledging that although the bar for conditional certification of a FLSA collective action is low, “it is not this low.”  Sanchez v. JMP Ventures, LLC, 2014 U.S. Dist. LEXIS 14980 (S.D.N.Y. Jan. 27, 2014).  The district court explained that “[t]he notice and opt-in process outlined by the FLSA is not a discovery device to determine whether conditional certification is appropriate.  More is required under the law, even at the first stage of the conditional certification process.”

Plaintiff moved to conditionally certify a collective action under FLSA 216(b) in an action alleging that defendants had failed to pay him and others similarly situated minimum wage and overtime compensation.  Plaintiff sought to conditionally certify a class of “all tipped employees, including delivery persons, bussers, runners, waiters and bartenders” employed within the last three years at one of defendants’ three “Harry’s Italian” restaurants.  In support of his motion, plaintiff submitted a four-and-half page declaration.

The district court concluded that “[t]he factual record . . ., limited to plaintiff’s affidavit, is insufficient to support even an inference that a common policy or plan that violated the law existed with respect to this variety of potential opt-in plaintiff.”

According to the plaintiff’s affidavit, he worked solely as a delivery person at two of the three restaurants for a total of approximately seven months in 2012–four months at one restaurant and three months at the other.  Plaintiff alleged he regularly worked 54 hours per week at one restaurant location and 42 hours per week at the other, and that he was paid neither the minimum wage nor overtime wages as required by the FLSA.

Plaintiff alleged that “these policies” were the “common practice” at all Harry’s Italian Restaurants based on “observations” and “conversations” with other employees whom he listed by first names only.  Plaintiff did not, however, provide any detail as to a single such observation or conversation including the where and when of these alleged observations and conversations which, the court noted, was “critical in order for [it] to determine the appropriate scope of the proposed class and notice process.”  The court noted that the plaintiffs personal observations alone would only appear to cover seven months (split between two of the three restaurants) of the three-year period for which he sought conditional certification.

Takeaway

At the first stage (conditional certification) of the collective action process under the FLSA it is well recognized that plaintiffs bear a minimal burden of making a “modest factual showing” that the named plaintiffs and the potential opt-in plaintiffs together were “similarly-situated” victims of a FLSA-violating “common policy or practice.”  This case is a reminder to employers defending against FLSA collective actions that while a plaintiff’s burden of proof at the conditional certification stage is low, “it is not non-existent–certification is not automatic.”  With this in mind, employers through counsel should craft their arguments against conditional certification by challenging any conclusory or unsupported allegations in the plaintiff’s motion.