The mantra uttered by plaintiffs in FLSA cases is the “fairly lenient” standard used by many courts to determine conditional certification. As we have written before, this standard may give the plaintiffs an early victory, but may not really benefit either side as such claims are frequently decertified, suggesting that the original decision to certify conditionally was a waste of money and judicial resources. A recent case from the Western District of New York reflects that common sense may still result in conditional certification being denied.

In Brickey v. Dolgencorp., Inc.pdf., Case No. 06-CV-6084L (W.D.N.Y. Feb. 23, 2011), the plaintiffs were hourly employees of the Dollar General Stores. They contended that as a result of the company’s allocation payroll budgets to individual stores, managers were pressured to “shave” time from payroll records or to ask employees to work off the clock. They claimed that these policies encouraged violations not only of the FLSA, but also that of the laws of New York, Ohio, Maryland, and North Carolina, where the individual plaintiffs worked. They sought conditional certification of a nationwide class of assistant managers and clerks under the FLSA, and also state law class actions in the four states in which they had worked.

The district court cited and followed the two-step procedure for certification of an FLSA collective action. It first noted, however, that there was nothing inherently illegal about an employer having or enforcing a payroll budget. To the extent that they were claiming violations, their real complaint was that individual managers may not have complied with the statute to meet their budgets. Thus, the court found, following the lead of at least one other case, that a policy that might indirectly encourage managers to limit overtime did not violate any statute. Further, because the existence of any violation turned on the actions of individual managers, the court found that examination of the plaintiffs’ claims would have to be undertaken on a manager-by-manager basis, and not on a nationwide or state-wide basis. While acknowledging the “fairly lenient” standard for conditional certification, the court concluded that the plaintiffs had not shown that they “were subject to a common policy or practice that violated the law, as opposed to unlawful actions by individual, anomalous managers” and denied the plaintiffs’ motion.

With that ruling, the court’s conclusion as to the state law claims was no surprise. It found for the same reasons that the plaintiffs could not establish that common legal or factual issues predominated or that the interests of judicial economy would be served by having “hundreds of fact-intensive ‘mini-trials.’” Thus, it found that the plaintiffs could not satisfy the requirements of Rule 23(b) and denied certification of the state law classes.

The Bottom Line: While plaintiffs have a lesser standard for conditional certification, they still need to demonstrate a common class-wide policy that actually violates the law.