Despite its significant rulings in other areas, we don’t have any blockbuster Supreme Court opinions to discuss this week as it has already decided all of class action before it.  Since we don’t have a Dukes, Concepcion, Comcast, or AMEX opinion in the offing, let’s talk about something else.

Courts that employ the two-step certification procedure in FLSA collective action litigation, now the majority, use a relatively lenient standard at the first, “conditional certification” stage.  While courts often note that the plaintiffs must make a minimal showing that the members of the proposed class are “similarly situated” at that stage, that standard is not invisible as a recent case from the Southern District of New York reflects.

In Ikikhueme v. Culinart, Inc., Case No. 12 Civ. 293 (JMF), the employer operated dining facilities at schools, corporations, and elsewhere across the United States.  The plaintiff, a former sous chef, contended that he was misclassified as exempt and asserted overtime claims under the FLSA and its New York counterpart.  When he moved for conditional certification, perhaps because of overconfidence that the classification was in error, he committed two mistakes, resulting in the motion being denied 

Mistake No. 1:  Changing the proposed class.  The plaintiff first moved to certify a class of all food service employees working for the employer, a number in the thousands, but then limited the class to sous chefs, a much narrower group.  Still, he sought conditional certification nationwide despite a wide variation in the size of the company’s facilities.  This change of theory likely influenced the court’s view that the plaintiff had no coherent theory covering the putative class members.

Mistake No. 2:  Not showing enough.  More importantly, the plaintiff took an especially minimal approach to certification, relying upon his own declaration reflecting an “understanding” the company’s payroll practices across the country.  The court found this showing “unsupported” and concluded that it failed to meet even the minimum burden for conditional certification.  Thus, the court denied the plaintiff’s motion.

The bottom line:  Despite the low standard, a plaintiff seeking conditional certification under the FLSA must still make a minimal showing that the class members are similarly situated.