Here’s a novel approach: What if you have an “off the clock” case where the court disfavors certification? Can you simply tack them onto claims in another pending class action lawsuit?

That was the tactic attempted by the plaintiffs in In Re Wawa, Inc. Data Security Litigation, Civil Action No. 19-6019 (E.D. Pa., May 24, 2021). In that case, the employer, which operated convenience stores, was the victim of a data breach. The resulting class actions arising from information stolen during the breach were divided into separate sets of claims for consumers, employees, and financial institutions.

With respect to the employees, one of the claimants tried to assert Fair Labor Standards Act (FLSA) claims for alleged off-the-clock work by assistant general managers. Ironically, this plaintiff was himself terminated for falsifying his own reports’ time records in order to reduce the amounts for which they were paid. Putting that irony aside, he also sought conditional certification, but the district court denied the motion for two important reasons.

First, the plaintiff’s own claims were time-barred. Because he had no claim, he could not serve as an appropriate class representative.

Second, the district court found that the allegations regarding the claimed off-the-clock work were not sufficiently supported even to justify conditional certification. The plaintiff relied primarily on the allegations of his own amended complaint and records produced during a prior lawsuit against the employer. The court found these to be inadequate in part because the claims in the prior case were for misclassification of the assistant general managers, not off-the-clock work, and the employer had since reclassified the workers and changed its policies. The newer policies expressly required that time be recorded inaccurately.

The court rejected the plaintiff’s argument that the allegations of the amended complaint were sufficient, and similarly rejected arguments that the employer had a “policy to violate the policy” that justified conditional certification.

Conditional certification is granted all too frequently, leading to settlement simply because of the cost of defending even the weakest FLSA claims. Off-the-clock claims are especially problematic, as they almost inevitably come down to individual inquiries. This case provides a good example of a court not accepting a marginal claim that appeared to have nothing to do with the underlying claims of a data breach.

The bottom line: A plaintiff trying to obtain conditional certification cannot rely on other class claims in the same case or mere assertions of a “policy to violate the policy.”