While we have occasionally bemoaned the lenient conditional certification standard in FLSA collective actions, as the recent case of Triggs v. Lowe’s Home Centers, Inc., No. 1:13-cv-1897 (N.D. Ohio Aug. 19, 2014) shows, not all courts are willing to rubberstamp collective actions onto the second stage of litigation.
The six plaintiffs in Triggs were former non-exempt sales specialists for Lowe’s home improvement chain. The plaintiffs claimed that Lowe’s violated the FLSA and the Ohio Minimum Wage Fair Standards Law because they were not paid for pre- and post- shift activities involving the “donning and doffing” of their Lowe’s uniforms. Or, in plain English, they alleged that they had to take their blue Lowe’s vests or aprons on and off at work without being paid for that time. And, of course, despite working in just 4 of Lowe’s 83 Ohio stores, the plaintiffs sought a nationwide FLSA collective action that would include approximately 200,000 non-exempt hourly employees in some 1,700 stores across the entire country. Plaintiffs argued this was appropriate because all Lowe’s non-exempt employees are subject to the same policies of storing and wearing their uniforms.
The court was not buying what the plaintiffs were selling. First, the court decided to hold plaintiffs to the conditional certification “plus” standard – an intermediate level of proof between conditional and final certification – because plaintiffs had engaged in some discovery. Then, the court went about dismantling the notion that a nationwide class could ever be appropriate. It found there was no single policy across all Lowe’s locations regarding where uniforms had to be stored, when they had to be put on, and where and when employees could clock in for pay purposes. It also noted that there were vastly different experiences between plaintiffs’ accounts of their clock-in and out procedures and those of the numerous employee declarations that Lowe’s submitted (homework by Lowe’s that obviously paid off). Thus, the court found that there was no evidence of substantial similarity among the proposed opt-in plaintiffs and refused to conditionally certify a collective action.
The court also denied the plaintiffs’ request for a Rule 23 class on their Ohio state law claims. Relying on the Dukes case, the court found that the plaintiffs failed to show commonality under Rule 23(a)(2) for the same reasons that make conditional certification improper. Interestingly, the court found that even if the plaintiffs had satisfied the commonality requirement, they still failed to establish predominance under Rule 23(b)(3). The court reasoned that even if there was substantial proof as to Lowe’s policies that were common to the class, the ultimate question of whether those policies resulted in the undercompensation of overtime to the putative class members still required an individual inquiry. The court did not frame this as a damages problem. To the contrary, it found that “[i]n order for defendant to be liable, there would need to be a determination of how long it took each employee to don/doff their uniform and travel to their assigned departments. After that, there would need to be a determination of whether this extra time would cause the plaintiff to be eligible for overtime.” Moreover, the court correctly noted that this would have to be done on a week-to-week basis.
Considering that it would have taken the court around 200 years to complete this individualized inquiry for all 200,000 putative class members (assuming 250 work days per year, 4 plaintiffs per day and access to the Holy Grail), the court’s ruling is perhaps unsurprising.
The bottom line: Some courts remain willing to use the conditional certification stage as an early opportunity to cull untenable class and collective actions.