Virtually every brief seeking conditional certification will point to an employer policy that allegedly ties the collective or class together. But as a growing number of courts are recognizing, a uniform policy is not sufficient; rather, the plaintiffs must point to some classwide policy or practice that is actually illegal.

That was the issue in the case of Elliott v. Barbecued Integrated, Inc., Case No. 19-62426-CIV-Singhal (S.D. Fla. May 29, 2020). The underlying facts were typical of misclassification cases in the restaurant industry. The defendant opted 68 Smokey Bones restaurants in a number of states. Generally, each location employed a general manager to run the restaurant as well as a kitchen manager, a service manager and a bar manager. The plaintiff, who had worked both as a kitchen manager and a service manager, contended that all but the general manager was misclassified as exempt and thus entitled to overtime.

The plaintiff moved for conditional certification for a nationwide class of kitchen, bar and service managers. In doing so, the plaintiff relied on his own testimony, the testimony of a co-worker and the company’s use of uniform job descriptions for these positions. The problem was, however, that they could point to nothing in those job descriptions, such as the performance of nonexempt work, that would render them misclassified. The court found that this was insufficient to justify making the defendant produce a list of potential claimants and providing notice to them.

In addition to opposing conditional certification, the employer filed a motion to dismiss certain claims. The first was a creative fraud allegation predicated on the company’s provision of W-2 information to the IRS. This claim failed largely because the W-2s were accurate – they reflected what the employer had paid the employees – and the employer had no obligation to report money not paid to the workers. The court also found that various other claims, including those in tort, were time-barred.

The Elliott case reflects that while the standard for conditional certification is low, nominal showings of uniformity should not be sufficient.

The bottom line: Employers should not hesitate to challenge motions for conditional certification predicated on uniform but lawful company policies.