FLSA Conditional Certification Standard Bites Plaintiffs

A district court in the Eastern District of Louisiana refused to conditionally certify a class of employees who accused their employer of intentionally underpaying and reducing hours from time records to avoid paying overtime under the Fair Labor Standards Act (FLSA). In Rowe, the named plaintiff and an opt-in plaintiff filed affidavits with their conditional certification motion, describing their personal experiences of having their working hours intentionally reduced and shorted, allegedly based on a policy and practice to save on labor costs and increase supervisor bonuses.

Applying the “fairly lenient standard” recognized in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D. N.J. 1987), the district court nonetheless held that conditional certification of an FLSA class was “not automatic,” and that the lenient standard was “not toothless.” Id., *3. Noting its obligation to refrain from “stirring up unwarranted litigation,” id., * 2, the Rowe court found that a plaintiff seeking to conditionally certify a class must come forward with “substantial allegations of an unlawful decision, policy or plan” in order to conditionally certify the class (emphasis in original).

In this case, the plaintiffs’ submissions fell short. Finding that at best the plaintiffs described potential FLSA violations relating to their individual circumstances, such individual allegations did not convert their claims into a sustainable class action on the record presented. For example, although the submissions suggested there were other employees who told the plaintiffs that they too had been shorted hours worked, the plaintiffs failed to provide any details as to the identities of the other employees, why the employees believed they were shorted hours, or how the other employees were allegedly harmed by the same decision, policy, or plan of which plaintiffs claimed to be a victim. The failure to provide any substance or context for the “why” or “how” left the court with little choice but to find that plaintiffs failed to establish a nexus between their individual claims and other potential class members as victims of an alleged unlawful policy or practice. Id.

Rowe provides a reminder that even under the so-called “lenient” conditional certification standard in FLSA cases, plaintiffs should be held to their evidentiary burden to substantively support their claims to avoid turning individual disputes into “‘ … a frivolous fishing expedition conducted by the plaintiff at the employer’s expense.’” Id. at *2 (citing Lentz v. Spanky’s Restaurant II, Inc., 491 F. Supp.2d 663 (N.D. Tex. 2007).

Rowe v. Hospital Housekeeping Systems, LLC, No. 17-9376 (E.D. La. Feb. 6, 2018)