In Nationwide Conditional Certification, Evidence Still Matters

As employers well know, the Fair Labor Standards Act (“FLSA”) permits employees to file suits on behalf of themselves and others who are “similarly situated.” 29 U.S.C. 216(b).  In practice, this often means large employers find themselves defending against a single or handful of employees attempting to certify a collective action that includes hundreds or thousands of employees nationwide.  Many times, the collective group includes employees in states where the plaintiffs have never worked.  However, as a NY federal court recently reminded us, while plaintiffs’ evidentiary burden is not onerous at this stage, lack of knowledge about the employees in other states continues to be an obstacle for plaintiffs in obtaining conditional certification.  On the opposite side of the coin, this failure of evidence can be utilized by defendant employers to narrow the proposed collective group or altogether prevent the conditional certification of a collective action. 

On May 2, 2017, the US District Court for the Southern District of New York, in Brown v. Barnes and Noble, Inc., No. 16-cv-07333, denied conditional certification of a group of Barnes & Noble café managers who claimed to be misclassified as exempt from overtime pay under the FLSA.  The plaintiffs, who were attempting to conditionally certify a nationwide class (excluding California) of approximately 1,100 café managers, relied primarily on six plaintiff declarations.

Despite the relatively low evidentiary bar at the conditional certification juncture, and the fact that these café managers were classified as non-exempt prior to September 2016, the Court ruled that the “nearly identical, cursory descriptions” in the plaintiffs’ declarations were not sufficient to justify conditional certification of café managers throughout the nation. Id. at 4.

The Court seemed skeptical of the declarations, stating they used “self-serving legal terms of art.” Id. at 12.  Calling them “cookie-cutter” declarations, the Court noted that the plaintiffs may have deliberately omitted managerial tasks that were mentioned in performance reviews. Id. at 13.  Further, the Court pointed out that the plaintiffs failed to provide copies of policies and procedures that were discussed in declarations, and discussed them in formulaic terms. Id. at 14.  In denying the motion, the Court seemed to suggest that the evidence submitted might have been enough to certify a smaller location specific collective group, but not one that is nationwide. Id. at 19-21.  Such suggestions are heartening to employers who have argued, with limited success, that nationwide collective actions are rarely justified.

This case serves as a reminder that courts are willing to scrutinize plaintiffs’ evidence and that, under the right circumstances, employers can effectively fight against conclusory declarations of employees in this context.