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.  In Seward v. International Business Machine Corp.pdf., Case No. 08-CV-3976 (S.D. N.Y.,  March 9, 2012), the plaintiffs sought to represent a class of IBM call center workers.  The crux of their claim was their contention that they were not paid for the time it took for them to “boot up” their computers when they started their days because of a requirement that they be “call ready” as soon as their shift began.  They alleged that as a result of this “call ready” 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’ motion for conditional certification, and 39 additional plaintiffs opted in.  This was a relatively small group by today’s standards, but following two years of discovery, IBM moved to decertify the class.  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.  At oral argument, the plaintiffs contended that the entire class was appropriate, and rebuffed the suggestion that a smaller class might be viable.   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.  Hoping to keep the entire class, they did not assert before the Magistrate Judge that a smaller class was proper.  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.  Accordingly, it upheld the Magistrate Judge’s decision and decertified the class. 

The Seward case, although brief, is instructive on several issues.  First, it reflects the reality that many cases that have been conditionally certified will not stay certified to or even through trial.  Second, it shows that individual differences will continue to undermine the cohesiveness of a class, particularly in off-the-clock cases.  Finally, it underscores that plaintiffs cannot prevail simply by trying to cobble together the largest possible class.  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:  Individual differences among supervisors may prevent even a class that has been conditionally certified from staying certified through trial.