In collective actions under the FLSA, courts typically apply a lower standard to the first “conditional certification” stage. In some cases, that might be warranted, but in many instances courts will undertake an unduly lenient review and conditionally certify cases that have no business proceeding as a class and have no realistic prospect of surviving as a class at the higher second stage. These rulings likely run afoul of the admonition of the Federal Rules of Civil Procedure that district court proceedings should be employed “to secure the just, speedy, and inexpensive determination of every action . . . .” F.R. Civ. P 1. Instead, such rulings rely upon the time, expense and burden of post-notice litigation to pressure the defendant into settlement. Indeed, one line of cases notes that a court ruling on a motion for conditional certification should be mindful of its obligation “to refrain from ‘stirring up unwarranted litigation.’” Rowe v. Hospital Housekeeping Systems, LLC., Case No. 17-9376 (E.D. La. Feb. 6, 2018) (and cases cited therein).

Increasingly, when courts do undertake to examine the merits, even at the initial stage, it becomes obvious that the matter will never survive as a collective action. This is particularly true in cases in which the employer’s policies are facially lawful but the plaintiff tries to allege some class-wide policy to “violate the policy.”

A recent case from the Eastern District of Michigan Illustrates this point. In Cross v. AMC Detroit, Case No. 18-11968 (E.D. Mich. June 20, 2019), the plaintiffs sought to bring a collective action under the FLSA for bartenders working at various Buffalo Wild Wings franchises. The crux of the claim was that the bartenders were required to perform a significant number of janitorial claims such that the franchisee, they asserted, should not have been allowed to take advantage of the FLSA’s tip credit.

Following at least some discovery, the plaintiffs moved for conditional certification under the familiar two-step paradigm adopted by the courts. Because discovery had taken place, the court at first applied the slightly higher “modest-plus” standard to evaluate their claims.

The plaintiffs contended that they met that standard because the employer used the tip credit for all of the class members, they had anecdotal evidence that many bartenders worked dual jobs as bartenders and janitors, and the employer had more or less uniform cleaning policies. For its part, the employer pointed to its own policies requiring bartenders to clock into a different, FLSA-compliant rate when doing janitorial work. The court concluded that the plaintiffs were really arguing that the employer’s policies were “not being followed as a general practice.” The employer, in turn, submitted evidence that the bartenders were trained on the policy and instructed to follow it.

Following the decision in Pacheco v. Boar’s Head Provisions Co., 671 F. Supp. 2d 957, 966 (W.D. Mich. 2009), the court found that the plaintiffs had not sufficiently supported a claim of a class-wide policy-to-violate-the-policy. Indeed, the court questioned whether the submissions were sufficient to support such a claim even on the lower conditional certification standard that applies without discovery. It rejected arguments based on the plaintiffs’ own conclusory declarations and allegations that appeared to contradict undisputed evidence. Accordingly, the court denied conditional certification of the plaintiffs’ claims.

The bottom line: Absent genuine evidence of a “policy to violate the policy” on a company-wide basis, courts should decline even conditional certification when the employer’s policies are facially lawful.