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In January 2014, NFL Commissioner Roger Goodell raised eyebrows (and ire) when he announced that the league was considering eliminating the extra point after a touchdown.  As Goodell put it, "the extra point is almost automatic," given that it is kicked from the twenty yard line, and it is exceptionally rare that a professional NFL kicker would miss at such a short distance.

The same can be said for recent decisions regarding conditional certification in FLSA lawsuits.  As courts and plaintiffs have frequently pointed out, the first stage of the near-universally applied Lusardi FLSA certification requires that plaintiffs meet only a "lenient" evidentiary standard. While plaintiffs may try to argue that conditional certification is as "automatic" as an extra point, that may not always be the case.  Just as the Cleveland Browns proved when they botched the play on September 14, 2014, an extra point after a touchdown is never "automatic."  And as much as no one wants to be compared to the Cleveland Browns, the recent, related cases of <a href="https://employmentclassactionreport.bakerhostetlerblogs.com/wp-content/uploads/sites/8/2014/09/pullen.pdf">Pullen v. McDonald's Corp.</a>, case no. 5:14-cv-11081 and Wilson v. McDonald's Corp., case no. 2:14-cv-11082 in the Eastern District of Michigan, both managed to miss the “automatic” extra point at the first stage of certification.  Unlike the Browns' play, however, the court's reasoning was straight-forward and logical.

The plaintiffs in both Pullen and Wilson alleged that McDonald's and its franchisees had failed to pay them minimum wage.  Specifically, the plaintiffs hailed from Detroit-area restaurants, where the workers complained that they had to wait to clock in when starting a shift or returning from break, and that they had the cost of their uniforms deducted from their pay.  These practices, they claimed, resulted in a wage lower than the mandated minimum.

The plaintiffs sought the court's conditional certification to send notice to 1,000 current or former McDonald's employees, as well as 3,000 franchisee employees.  The court balked at the size of the potential class and denied notice stage certification.  In his ruling, Judge O'Meara noted that, "it is almost certain that the court ultimately would find that the plaintiffs are not similarly situated in order to certify a class under the FLSA."  More specifically, he pointed out that the 1,000 to 3,000 potential class members had varying pay rates, hours worked, and various deduction methodologies.  Further, the judge was unconvinced that the deductions for uniforms would have lowered the average hourly pay below the minimum wage.

The Bottom Line:  The McDonald's decisions reiterate that a "lenient" standard does not translate into "it's a gimme."  Not only must plaintiffs identify a common illegal practice or policy, but practical considerations must be taken into account, as well--namely, there's no sense in certifying a class that will unquestionably be decertified down the road.

Court Sends Plaintiffs Back to the Locker Room Unhappy When It Denies Conditional Certification