United States: Is The "Lenient Standard" For Conditional Certification Of Misclassification Cases In District Courts In The Second Circuit Becoming Less Lenient?

Until recently, federal district courts in the Second Circuit have almost routinely granted conditional certification of Fair Labor Standards Act collective actions. In fact, plaintiffs' counsel have cited these statistics in their efforts to conditionally certify collective actions. For example, in Jenkins v. TJX Companies, Inc.,* the plaintiff stated that a seven-year search of decisions in the U.S. District Court for the Eastern District of New York uncovered 50 motions for conditional certification in cases under the FLSA, 47 of which were granted. Similarly, in Guillen v. Marshalls of MA, Inc.,* the plaintiffs stated that in the past five years 60 out of 68 motions to conditionally certify FLSA collective actions were granted in the U.S. District Court for the Southern District of New York. A natural consequence of these decisions was that the standard at the first stage in the certification process – in which courts determine whether the plaintiff is similarly situated to other putative class members with respect to the allegation the law has been violated – was deemed by many to be a formality.

More recently, however, federal district courts in the Second Circuit have issued a number of decisions denying conditional certification in misclassification cases and reaffirming the existence of a meaningful burden on plaintiffs at the first stage. One of the earlier cases was Guillen v. Marshalls of MA, Inc.,* where the court found the plaintiff's attempt to focus on the common, lawful policies that applied to everyone was insufficient to establish that the plaintiff and all managers nationwide were similarly situated. The court observed the flaws in the plaintiff's argument, writing:

Essentially plaintiff's argument . . . boils down to the proposition that where there is a corporate management structure that applies to all regions of the country – as is likely true for many, if not most, companies that operate nationally – any single employee may plausibly assert that employees throughout the country are similarly situated with respect to that employee's day-to-day job activities even if those job activities contravene the company's stated requirements.

The court also struck down the plaintiff's argument that an exempt classification coupled with an employee's allegations of performing non-exempt tasks could satisfy the applicable standard for certification because, "carried to its logical conclusion," every case would proceed collectively. In essence, the court in Guillen required the plaintiff to provide evidence suggesting a factual nexus linking the plaintiff's allegations of primarily performing non-exempt tasks to the putative class members.

The plaintiff's burden, thoroughly analyzed in Guillen, has been repeatedly applied in subsequent cases. For example, in Khan v. Airport Mgmt. Servs., LLC, the court similarly rejected an effort to certify a class of managers at approximately 600 nationwide stores where the plaintiff could not point to an unlawful policy or plan that could unify the class. Instead, the plaintiff supported his motion with just a reference to "at least 40" similar employees, but was unable to identify any of them or specify the basis for his knowledge. Likewise, the court in Zhang v. Bally Produce, Inc. echoed the requirement that a plaintiff must provide sufficient facts to establish that the duties and responsibilities of potential class members are similar, without which a bid for conditional certification of a misclassification collective action is doomed.

In Ikikhueme v. CulinArt, Inc.,* the U.S. District Court for the Southern District of New York took another step towards recognizing a meaningful burden for plaintiffs by focusing on the effect on employers of conditionally certifying a putative class. Specifically, the court stated that a "measured approach" must be taken "when addressing a request for collective action certification, mindful of the potential burden associated with defending against an FLSA claim involving a broadly defined collective group of plaintiffs."

Perhaps the most significant recognition of the plaintiff's burden occurred in Ahmed v. TJX Companies, Inc.,* where District Judge Spatt ruled on a Rule 72(a) motion objecting to a magistrate's decision to conditional certify a putative class of thousands of store managers who alleged they had been misclassified.  The decision is notable because the court not only concluded that the plaintiff failed to meet the "modest" burden for conditional certification, but  also found that the magistrate judge's decision to the contrary was "clearly erroneous and contrary to law."

While there continue to be decisions by district courts in the Second Circuit granting conditional certification in misclassification cases (e.g., Scott v. Chipotle Mexican Grill Inc., Stevens v. HMSHost Corp.), it appears that many judges may now be giving greater scrutiny to the adequacy of evidence presented by plaintiffs to support collective action certification in misclassification cases.

Stay tuned as we continue to report on new decisions and developments.

*The defendants in these cases were represented by Littler attorneys, including Greg Keating, Lee Schreter, Andrew Voss, John Bauer, and Justin Marino.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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