One can only imagine the outcome the plaintiffs’ attorneys were anticipating:  a case against the financial industry, involving non-exempt employees subject to an auto-deduct policy for meal periods, in the Southern District of New York.  It seems like a laundry list of many types of claims that have been certified, and they no doubt expected a good outcome for their claims.  Yet, in Fernandez v. Wells Fargo Bank, NA, Case No. 12 Civ. 7193 (PKC) (Aug. 28, 2013), the court not only denied certification of a Rule 23 class, but also denied conditional certification under the FLSA.

In Fernandez, the plaintiffs were non-exempt personal bankers who contended, essentially, that their heavy workloads prevented them from completing their work within 40 hours, yet they were discouraged from incurring overtime and worked through unpaid meal periods to complete the tasks assigned to them.  They sought to represent a class of personal bankers at numerous bank branches in five northeastern states.  They could not point to a single illegal company policy, but claimed that a combination of the workload, auto-deduct policies for meal periods, and general practice of avoiding overtime caused them to work overtime hours without compensation.

The problem?  As the court noted, their proof fell short of establishing a class-wide illegal policy.  More particularly, the court found that “[t]here is a disconnect between the forceful assertions set forth in plaintiffs’ memoranda, the record submitted in support of their motion and the definition of the proposed class.”  Instead, they relied upon general feelings, a handful of ambiguous policies that may or may not have been used in different branches at different times, evidence from outside the proposed class’s geographic scope, and largely hearsay comments from unspecified individuals possibly in management.

The court was unimpressed with this showing.  Applying the decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), it found that there was neither commonality nor typicality under Rule 23(a).  It also found a lack of predominance under Rule 23(b)(3).  Thus, it denied certification of a class under New York law.  This part of the decision is significant because of the application of Dukes to a wage and hour case.

Importantly, the court also denied conditional certification under the FLSA. It found that even under the lesser standard for conditional certification, the plaintiffs had failed to make the requisite showing.  It distinguished other authority from the Southern District of New York, finding that those cases involved facially unlawful policies or established de facto practices that violated the FLSA.

Thus, although the plaintiffs likely expected to have a class of hundreds certified, and might reasonably (given the readiness of some courts) have anticipated conditional certification, they ended up with neither.  Incidentally, we blogged a similar case from the Southern District of Texas, Griffith v. Wells Fargo Bank N.A., Case No. 4:11-DV-1440 (S.D. Texas) involving loan processors a year ago, on September 8, 2012, which reached largely the same result, and this court noted yet another similar case, Richardson v. Wells Fargo Bank, NA, Case No. 11 Civ. 738 (S.D. Tex., Feb. 2, 2012).

The Bottom Line:  Even in a case involving common FLSA themes, some courts will examine the plaintiffs’ showing carefully and will deny conditional certification when they have failed to establish a uniform illegal policy.