As we’ve noted before, many courts have applied the standard for conditional certification so leniently that in places the requirement of a group of “similarly situated” employees under the FLSA has all but disappeared. So, it’s refreshing to see a case that still requires at least a minimal showing of a similarly situated class – and in particular one involving restaurants, one of the most fertile sources of collective action litigation.
In Cedeno v. Kona Grill, Inc., Case No. 8:17-cv-01039-JSM-AEP (M.D. Fla., July 24, 2017), the plaintiff was a sous chef at a Kona Grill restaurant in Sarasota, Florida. He brought a collective action for alleged unpaid overtime, contending that he and others had been misclassified as exempt. He sought to represent employees holding a range of positions in the restaurant’s 46 locations in the United States and Puerto Rico.
The case was remarkable in at least two respects. First, the range of the positions he challenged as nonexempt was vast, and included not just sous chefs or even cooking staff generally, but:
“sous chef, assistant general manager of restaurant, assistant manager of restaurant, site development manager, lease administrator, development procurement manager, facilities manager, purchasing/facilities coordinator, project designer, manager of architecture, accounts payable manager, accountant, senior manager of tax, manager of IT, senior tax analyst, marketing manager, marketing coordinator, applications system support analyst, recruiter, training manager, and training coordinator.”
While some of these positions are common targets of FLSA misclassification litigation (e.g., assistant managers), others seem less obvious, such as the “manager of IT” and the “training manager.”
The second unusual aspect was that the plaintiff apparently gained the cooperation of the company’s former human resources manager, who testified through her declaration that she had performed audits of the various positions during her employment and had determined that several restaurant and corporate positions had been misclassified. Thus, the plaintiff sought an unusually broad and diverse class but also had the less common testimony of the former HR manager that the positions had been misclassified.
At the time of moving for conditional certification, the plaintiff was the sole opt-in. The support for conditional certification consisted solely of the plaintiff’s own declaration and that of the former HR manager.
The court found that the absence of any other opt-ins, or any other individuals identified as wanting to join the case, doomed conditional certification. Of even greater interest, the court found that the positions were not similarly situated, as they included widely different titles, types of employees, duties, locations and exemptions. Indeed, the court found that the proposed class was simply too broad as the “only similarity” was “that the twenty-one job titles were allegedly misclassified as exempt.” The court concluded that certifying such a class would “essentially render the similarly-situated requirement meaningless” and denied certification.
One can only guess that the plaintiff sought such a class on the strength of the former HR manager’s testimony, but the Cedeno case reflects that there are limits, and that at least some courts will look to the statute and examine whether the proposed class members are, indeed, similarly situated.
The bottom line: A case should not be certified, despite broad allegations of misclassification, when the putative class members have different jobs and perform different duties.