As we have commented before, there are no class actions per se under the Fair Labor Standards Act. Rather, the plaintiffs must demonstrate that the proposed class members are "similarly situated." In making that determination, most courts considering certification of classes under the FLSA now use a two-step procedure. At the first stage, they apply a lenient standard to determine if the employees are similarly situated and, if so, authorize notice to the proposed class. This stage typically goes under the misnomer of "conditional certification," but is now being more correctly referred to as the "notice" stage. At the second stage, typically after more discovery, courts will apply a higher standard, often resulting in the "decertification" of the class they had conditionally certified.

Courts have tended to conditionally certify cases more often than not based on the lenient standard. At least some courts, however, are requiring at least a modest showing and are refusing to issue even conditional certification when that showing has not been made. Most recently, in Ramos v. Burger King Corporation.pdf, Case No. 8:11-cv-642-T-30MAP (M.D. Fla. Oct. 6, 2011), the three plaintiffs were Burger King restaurant general managers and assistant managers who contended that they were misclassified as exempt for overtime purposes. They sought to pursue a nationwide collective action under the FLSA on behalf of all managers and assistant managers at 866 Burger King-owned restaurants.

The plaintiffs moved the court for conditional certification. They supported their motion with their own opt ins, and consents of eight other potential class members. They also pointed to the employer's use of common job titles. The defendant, for its part, submitted declarations from managers who did not want to participate in the case and from district managers who testified as to differences among restaurants.

The district court acknowledged the two-step procedure, but noted that even at the conditional certification stage the plaintiffs still had the burden to show that there were other employees who wanted to opt-in. The court noted that Burger King operated restaurants of different sizes, and that factors such as sales volume, manager experience, and hours of operation could all affect the exempt work being performed by the potential plaintiffs. It concluded that the plaintiffs' showing was "woefully short of meeting the similarly situated standard." It therefore denied conditional certification.

The Bottom Line: Under the two-step procedure for collective actions under the FLSA, a number of courts will hold plaintiffs to making even a minimal showing that there is a class of similarly situated individuals.