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 Middle District of Tennessee illustrates this point. In Ratcliffe v. Food Lion, LLC, Case No. 3:18-cv-01177 (M.D. Tenn. Aug. 16, 2019), the plaintiffs brought a fairly typical FLSA collective action – one contending that assistant managers at a grocery chain did not exercise the appropriate amount of management responsibility or independent judgment and were therefore misclassified as exempt. When the plaintiff moved for conditional certification of a proposed class of assistant managers company-wide, the court noted and applied the traditional lower standard, but also noted that the plaintiff is still required to produce factual support “for the existence of a class-wide policy or practice that violates the FLSA.”

In this instance, many of the basic, and to some degree overlapping, facts were undisputed and were common to the claimed collective class members. They were all assistant managers working for the same employer under the same job description, and all were classified as exempt. Matters in common, yes, but none illegal. Similarly, the company used uniform policies across all of its stores. Again, nothing illegal about that. And that was the problem. The company’s job descriptions described a job that would be exempt under the FLSA. To prevail, the plaintiffs had to prove that despite the written policies there was some unwritten policy to violate them on a class-wide basis.

This is, incidentally, a fatal flaw in many FLSA cases that purport to be brought on a class-wide basis.

Both sides made evidentiary submissions mostly recounting the experiences of individual assistant managers at individual stores. The court refused to make any credibility determinations and largely ignored the employer’s evidence, but still found that proof of a nationwide, uniform “policy to violate the policy” (our words, not the court’s) was lacking. Instead, the court found, the proposed class members’ experience depended on what happened at each individual store and under the different managers at each location. Moreover, different assistant managers had different specific sets of duties. Under those circumstances, the court found that treating the case as a collective action would be both procedurally unwieldy and unfair to the defendant. It therefore denied certification.

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.