United States: Don't Judge A Conditional Certification Motion By Its Cover

Last Updated: July 10 2018
Article by Robert S. Whitman and Michael D. Wexler

Seyfarth Synopsis: A New York federal court once again denied a motion for conditional certification of a nationwide collective action against Barnes & Noble.  The ruling highlights that, even though the burden for "first stage" certification is modest, courts are willing to apply a "modest plus" approach after discovery relevant to conditional certification has taken place.  It also shows the potential positive impact the Supreme Court's recent Encino Motorcars decision may have for employers opposing conditional certification.

Foreword

Once upon a time, we blogged about a decision in the Southern District of New York denying conditional certification of a nationwide collective of café managers at Barnes & Noble.  Undeterred, the managers again sought conditional certification, this time after the parties conducted extensive discovery focused on issues pertinent to conditional certification.  Magistrate Judge Katharine H. Parker concluded this story by again denying conditional certification, finding that "the solicitation of additional opt-ins will raise more questions and prolong the resolution of this case" given the differences between putative class member.

Chapter 1:  The First Denial

Our tale concerns claims that the café managers were misclassified as exempt under the FLSA.  In her prior decision, Judge Parker denied conditional certification without prejudice given the lack of evidence as to whether the named plaintiffs were similarly situated to the putative class.  She held that she could not "infer that Defendant had a de facto policies of requiring all 1,100 café managers to perform non-exempt work based on the personal experiences of the nine people who have joined this suit" and "nor can it infer such a policy from general assertions" and "cookie-cutter declarations."

Chapter 2:  Discovery Ensues

Seeking an alternate ending, the plaintiffs advanced the plot, taking extensive discovery focused on conditional certification, including the production of more than 25,000 pages of documents, more than ten depositions, several written statements from opt-ins concerning their job duties, and obtaining contact information for 200 putative members of the putative collective so they could interview them about their job duties.  Given this extensive discovery, Judge Parker held that she would apply a "modest plus" standard in this chapter to determine whether conditional certification was appropriate, rather merely requiring a "modest factual showing."

Chapter 3:  The Second Denial

Judge Parker began her analysis with a flashback to the Supreme Court's April 2018 decision in Encino Motorcars In that gripping drama, the Court rejected the longstanding notion that FLSA exemptions should be construed narrowly.  Although not faced with deciding whether the managers were in fact misclassified as exempt, Judge Parker cited to Encino Motorcars to set the stage for her decision on certification, stating that she would be guided by "the Supreme Court's recent pronouncement about FLSA exemptions when evaluating whether Plaintiffs have met their burden of demonstrating the existence of common nationwide policies."

Under this "modest plus" standard, Judge Parker again denied conditional certification.  In relevant part, Judge Parker held:

In sum, even accepting as true that BN scheduled and directed Café Managers to perform non-exempt tasks, the evidence presented by Plaintiffs does not demonstrate that it is more likely than not that Plaintiffs were subject to a common policy applicable to all Café Managers nationwide requiring them to primarily perform non-exempt duties. It is not enough for Plaintiffs to present policies that BN scheduled or directed Café Managers to perform some non-exempt tasks, because the core issue is whether Plaintiffs have raised an inference that Café Managers' primary duties were non-managerial.

The plot thickened. Judge Parker further noted that, "Plaintiffs' varying testimony suggests that some Plaintiffs may have performed more managerial duties than others underscoring the likelihood that...the Court may need to evaluate each Plaintiff individually to determine their primary duties."

In her final pages, Judge Parker once again dispelled the oft-cited theory advanced by plaintiffs that the reclassification of a position from exempt to non-exempt shows that the position was uniformly misclassified previously.

Epilogue:  What's Next?

It remains to be seen whether Plaintiffs will try to make this duology into a trilogy by challenging Judge Parker's decision to the District Judge.  Regardless, this decision, like the one before it, may become a "best seller" for employers in fending off conditional certification motions given its adoption of the "modest plus" standard and reliance on Encino Motors by, in effect, requiring Plaintiffs to show that the putative collective is subject not just to a common practice, but one that would actually violate the FLSA.

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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Robert S. Whitman
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