While many courts apply a lighter standard for the conditional certification of putative FLSA classes, employers tend to prevail more often on so-called “off-the-clock” cases, as a recent case from the Southern District of Texas demonstrates.  In Griffith v. Wells Fargo Bank N.A.pdf., Case No. 4:11-DV-1440 (S.D. Texas), the plaintiff contended that the employer required its loan processors to work off of the clock and therefore, did not properly compensate them for their overtime hours worked.  They sought conditional certification of a nationwide class of loan processors, relying on factors such as the employer’s job descriptions, handbooks, and use of a nationwide electronic time-recording system.

The court examined each of these to determine whether the plaintiff had made a showing of a nationwide illegal policy, but found none.  First, the court rejected the plaintiffs’ claim that the company’s time-keeping system encouraged the underreporting of hours by, among other things, “prepopulating” the time fields with the employee’s set schedule or prompting the employee to double-check their entries for accuracy if the time they recorded added up to more than a 14-hour day.  Since the employees could override the system, its use did not violate the FLSA.

The court also rejected an argument commonly made in FLSA cases, that the plaintiffs needed more than 40 hours per week to complete their work, and that the employer’s discouraging of overtime somehow “forced” them to fail to report time.  As the court aptly noted, this argument essentially turned the employer’s admonition to work efficiently into one to break its express policies.  The court found, moreover, that the employer’s policy was that the employees record all of their time, and that anything to the contrary would be “unofficial” and thus not the result of a nationwide illegal policy. 

The court concluded that the plaintiffs had failed to show that the loan processors were similarly situated and denied certification.

The Bottom Line:  Courts will more readily deny conditional certification of FLSA classes in off-the-clock cases (versus misclassification cases).