No “One-And-Done” Rule For FLSA Collective Actions

Perhaps it’s a tad unrealistic, but here’s hoping that John Calipari’s one-and-done recruiting strategies start influencing FLSA jurisprudence now that he’s finally won a national championship.

From an employer’s perspective, it’s hard to tell whether the recent denial of conditional certification in Jenkins v. The TJX Companies is a game-winning shot or if it simply sends the matter into overtime. See 2012 U.S. Dist. LEXIS 46394 (E.D.N.Y. Mar. 31, 2012). There’s certainly plenty in the opinion to celebrate. The plaintiff in Jenkins was an assistant store manager and claimed that he should have been paid overtime because he performed primarily nonexempt duties. He furthermore asked the court to conditionally certify his case as a nationwide FLSA collective action because the employer had one, common job description for all assistant store managers.

The court didn’t bite on the head fake, however. It noted that the plaintiff was claiming that he performed duties other than those listed in the job description (which were indisputably exempt). Because the plaintiff provided no evidence that other assistant store managers performed similar duties that departed from the job description, the court found that there was no basis upon which to authorize nationwide notice.

But, the employer must be feeling somewhat like Rick Pitino as he watched the ball leaving Christian Laettner’s hand. After rejecting conditional certification, the court said that the denial was without prejudice to renewing the motion later. So, having seen the analytical framework the court will apply and the arguments the employer will assert, the plaintiff essentially gets to call a do-over.

In the words of Dickie V., “ARE YOU KIDDING ME?!” The employer goes to significant lengths (and, presumably, expense) to collect declaration testimony and other evidence, successfully demonstrates that the plaintiff’s motion for conditional certification is without foundation, and gets the payoff of going through the whole process again? To be sure, the judge in the Jenkins case only allowed the plaintiff 20 days to renew his motion, and (assuming that date sticks) it may be a challenge to come up with sufficient evidence in that time period to support certification of a nationwide action. But, not all courts put a deadline on such renewed motions. That just doesn’t seem right.

Maybe the federal courts should adopt something like the NBA’s one-and-done rule–the plaintiff gets one chance to make a case for class/conditional certification, and presents his/her best arguments on the issue. If they come through in the clutch, it’s on to the bigs, i.e., class litigation. If not, they go the D-league route of a single-plaintiff action. (That’s actually nothing like the NBA rule or, for that matter, John Calipari’s recruiting strategy, but it’s still an apropos moniker.)

The Bottom Line: Some courts will not grant FLSA conditional certification motions automatically, but even they may give the plaintiffs a second chance to make their certification “case.”