Despite a growing number of defense victories at the decertification stage of FLSA collective actions, a recent Sixth Circuit district court decision, Ribby v. Liberty Health Care, is a reminder that under the two-stage certification process, the first stage, in many courtrooms, remains plaintiff-friendly.
Stating that at the first, or “conditional certification,” stage the standard in the Sixth Circuit is “fairly lenient,” requiring that plaintiffs show only a colorable basis for their claim that a class of similarly situated plaintiffs exists, the Ribby court granted conditional certification to a class of various types of hourly-paid nurses at a healthcare facility. The nurses claimed that daily 30-minute meal periods were automatically deducted from their pay regardless of whether they performed work during that time.
Recently, however, employers have been much more successful defeating FLSA collective actions at the second stage – decertification – of the collective action certification process in cases alleging the same types of claims. At that stage the courts have applied a “stricter standard” to determine whether particular members of the class are “similarly situated.”
For example, in Creely v. ManorCare, a case asserting the identical claims as those alleged in Ribby, the district court decertified a collective action following years of discovery and more than 60 depositions. The court found that:
Plaintiffs failed to present substantial evidence they are similarly situated with respect to the Defendant’s implementation of its auto-deduct policy. The record shows a variety of factual and employment setting among the individual Plaintiffs and the actions of hundreds of managers who actually implemented Defendant’s policy. As a result, the defenses are individualized, and it would be unfair and impractical, to both sides, to have representative testimony presented for the proposed class when any one Plaintiff’s situation is potentially markedly different from another’s. Representative evidence simply will not work under these facts.
Similarly, in two other cases with identical claims, Frye v. Baptist Memorial Hospital and White v. Baptist Memorial Health Care Corporation, – decisions relied on in Creely – the U.S. Court of Appeals for the Sixth Circuit affirmed the decertification of FLSA collective actions, finding that the individual factors, such as differences in job duties and employment settings, individualized defenses, and the degree of fairness and procedural impact of certifying the action as a collective action, made it inappropriate for the cases to proceed as collective actions.
Decisions such as Ribby continue to allow the parties and the court to be embroiled in lengthy and costly litigation, but the reality is that cases reaching the decertification stage are more often than not decertified for the very reasons argued by defendants at the initial stage. In the meantime, significant time and money is expended to ultimately establish what could have been determined at the outset, without extensive discovery: that the basic differences between plaintiffs overwhelm their claims of similarity, thereby defeating the policy, purpose, and practicality of collective actions.
We hope that federal district courts in the Sixth Circuit will apply the logic of Creely, Frye, and White at the earlier, first stage of the collective action process instead of waiting for the second stage, thereby requiring the parties, and the courts, to expend unnecessary resources and defeating the judicial economy that collective actions were designed to foster.