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We've commented before that employers defending collective actions under the FLSA generally fare far better on a motion to decertify than one for conditional certification, and a recent case reflects that fact.&nbsp; In <a href="https://employmentclassactionreport.bakerhostetlerblogs.com/wp-content/uploads/sites/8/2012/03/Seward-v.-International-Business-Machine-Corp.pdf">Seward v. International Business Machine Corp.pdf</a>., Case No. 08-CV-3976 (S.D. N.Y., &nbsp;March 9, 2012), the plaintiffs sought to represent a class of IBM call center workers.&nbsp; The crux of their claim was their contention that they were not paid for the time it took for them to &ldquo;boot up&rdquo; their computers when they started their days because of a requirement that they be &ldquo;call ready&rdquo; as soon as their shift began.&nbsp; They alleged that as a result of this &ldquo;call ready&rdquo; policy, they were not paid for all of the overtime they had worked under the Fair Labor Standards Act. In 2009, the court granted the plaintiffs&rsquo; motion for conditional certification, and 39 additional plaintiffs opted in.&nbsp; This was a relatively small group by today&rsquo;s standards, but following two years of discovery, IBM moved to decertify the class.&nbsp; Its chief argument was that only a few supervisors were claimed to have required the workers to be ready to start at the beginning of their shifts and that therefore the class members were not similarly situated.&nbsp; At oral argument, the plaintiffs contended that the entire class was appropriate, and rebuffed the suggestion that a smaller class might be viable. &nbsp;&nbsp;The Magistrate Judge ultimately granted the motion to decertify, and the plaintiffs appealed to the district court judge. The mistake the plaintiffs made was a common one.&nbsp; Hoping to keep the entire class, they did not assert before the Magistrate Judge that a smaller class was proper.&nbsp; While they made this argument before the district court judge, they had failed to do so beforehand and the court found that it was waived.&nbsp; Accordingly, it upheld the Magistrate Judge&rsquo;s decision and decertified the class.&nbsp; The Seward case, although brief, is instructive on several issues.&nbsp; First, it reflects the reality that many cases that have been conditionally certified will not stay certified to or even through trial.&nbsp; Second, it shows that individual differences will continue to undermine the cohesiveness of a class, particularly in off-the-clock cases.&nbsp; Finally, it underscores that plaintiffs cannot prevail simply by trying to cobble together the largest possible class.&nbsp; While such a strategy may put pressure on the defendant early on, it may easily result in there being no class at all. The Bottom Line:&nbsp; Individual differences among supervisors may prevent even a class that has been conditionally certified from staying certified through trial.

Court Decertifies FLSA Collective Action Against IBM