Tag Archives: “Conditional certification”

New York District Court Denies Conditional Certification of Second FLSA Collective Action

By Greg Mersol on August 27, 2015 Posted in Collective Action, Conditional Certification

Because of the low standard employed by many courts, decisions denying conditional certification in FLSA cases are generally in the minority, but some careful courts will continue to make such decisions. A recent case is notable not only for the fact that the court denied conditional certification, but also that it actually examined the events … Continue Reading

New York District Court Conditionally Certifies Class of Interns

By Greg Mersol on August 20, 2014 Posted in Collective Action, Conditional Certification, FLSA

A Blog About Bloggers Have you read any of the following lately? “Chinese Government Fans the Flames of the Ebola Zombie Rumors” “Arrested for Marijuana, Jackie Chan’s Son Could Face Execution” “Who is Dumpling All These Tuxedo Cats at a California Animal Shelter?” These are all recent headlines from various blogs run by Gawker Media … Continue Reading

Federal Court In New York Decertifies FLSA Collective Action Of 1,000 Hospital Workers Challenging Auto-Deduct Policy

By Gilbert Brosky on June 23, 2014 Posted in Conditional Certification, FLSA

Over the past several years, medical providers in particular have been beset by wage and hour claims arising out of so-called “auto-deduct” policies. A recent case, arising out of the Eastern District of New York, a jurisdiction that has generally been friendly to plaintiffs in this arena, suggests that such claims may ultimately fail. In … Continue Reading

Interns Win One, Lose One, In Having Misclassification Cases Conditionally Certified In New York

By Greg Mersol on June 18, 2014 Posted in Class Certification, FLSA, Rule 23

There has been a great deal of coverage involving litigation by interns against various media and entertainment companies in New York. We won’t recount the many articles, blogs, and discussions about this issue. If you need a quick summary of the law, the U.S. Department of Labor, in its Fact Sheet # 71, sets forth … Continue Reading

Florida District Court Rejects ERISA Claims Premised on Alleged FLSA Violations

By Greg Mersol on May 9, 2014 Posted in ERISA, FLSA, Retail, Rule 23

Plaintiffs in most class and collective actions try to plead their claims in such a way as to exert the maximum pressure against the employer. In some instances, that raises the issue of whether the plaintiff should assert one, clear claim or several. Having only one claim places the issues more starkly, but oftentimes plaintiffs … Continue Reading

New York District Court Grants Summary Judgment Against FLSA Class of Insurance Claims Adjusters

By Greg Mersol on November 25, 2013 Posted in Conditional Certification, FLSA

In a number of cases, the plaintiffs’ strategy in collective active litigation under the Fair Labor Standards Act may fall into a familiar pattern: file the case, do minimal discovery, move for conditional certification under the first-tier lenient standard, and then settle before decertification. While frustrating for employers, it can be, and often is, a … Continue Reading

Court Denies Conditional Certification of Class of Debt Collectors

By Greg Mersol on December 19, 2012 Posted in Class Certification, Off-the-clock

If someone with too much time on their hands tried to catalogue all of the decisions regarding conditional certification of proposed FLSA class actions, they would likely find that while plaintiffs prevail at this stage more likely than not, the employer’s chances improve either when (1) the claims are for off-the-clock time; or (2) the … Continue Reading

Court Denies Conditional Certification of Putative FLSA Collective Action

By Greg Mersol on October 15, 2012 Posted in FLSA

The United States District Court for the Northern District of Georgia has issued a very good decision for employers opposing conditional certification of FLSA minimum wage and overtime cases. In Beecher v. Steak N Shake Operations.pdf, Case No. 1:11-CV-4102-ODE (N.D. Ga. Sept. 27, 2012), the plaintiffs were employees of company-owned Steak N Shake restaurants working … Continue Reading

Court Decertifies Collective Action Arising Out of “Auto-Deduct” for Meal Breaks

By Greg Mersol on October 11, 2012 Posted in FLSA

Many employees, particularly professionals or paraprofessionals, prefer not to be bothered with “punching” in and out for their shifts or, more particularly, when they take a meal or a simple 15-minute break. Tracking such punches is also an administrative hassle for the employer. So, the solution for many employers is simply an auto-deduct policy. If … Continue Reading

Arkansas and California District Courts Deny Conditional Certification of Proposed FLSA Collective Class

By Greg Mersol on August 29, 2012 Posted in Class Certification

Courts routinely note the lighter burden of proof for conditional certification of FLSA cases, but oftentimes seem to allow certification based on little or no proof at all. A recent case from the Eastern District of Arkansas reflects that at least some courts will hold the plaintiff to that lesser evidentiary standard. In Farnsworth v. … Continue Reading

Third Circuit Sets Forth Standards for Collective Actions and Affirms Decertification of Class

By Greg Mersol on August 21, 2012 Posted in FLSA

Those familiar with FLSA and ADEA collective action litigation are well familiar with the judicially created two-step process used by most courts. Under the first step, misnamed “conditional certification,” the court first applies a lenient standard to determine if the class members are “similarly situated.” If that standard is met, the court authorizes notice to … Continue Reading

Florida District Court Denies Conditional Certification in Off-the-Clock Case

By Greg Mersol on July 27, 2012 Posted in Conditional Certification, Wage and Hour

Courts often cite the generally lenient standard for conditional certification, but that standard, like any other, has its limits. In Holmes v. Quest Diagnostics, Inc.pdf., Case No. 11-80567 (S.D. Fla. June 14, 2012), the plaintiffs sought to represent a class of phlebotomists for Quest Diagnostics nationwide. They claimed that the company essentially required off-the-clock time … Continue Reading

Court Limits Notice Despite Conditional Certification

By Jeffrey Vlasek on July 5, 2012 Posted in Class Certification, FLSA

Mad Men is a show known for many things: it’s a snapshot of the style and attitudes of the 1960’s, an accurate representation of the themes and difficulties of that period, and it thrives on the “slow burn” story lines that typically take an entire season to unfold before reaching conclusion. Indeed, it is a … Continue Reading

Conditional Certification Of Assistant Manager Overtime Class Denied…..For Now

By Todd Dawson on April 5, 2012 Posted in Class Certification, FLSA

No “One-And-Done” Rule For FLSA Collective Actions Perhaps it’s a tad unrealistic, but here’s hoping that John Calipari’s one-and-done recruiting strategies start influencing FLSA jurisprudence now that he’s finally won a national championship. From an employer’s perspective, it’s hard to tell whether the recent denial of conditional certification in Jenkins v. The TJX Companies is … Continue Reading

Court Decertifies FLSA Collective Action Against IBM

By Greg Mersol on March 13, 2012 Posted in Class Certification, FLSA, Off-the-clock

We’ve commented before that employers defending collective actions under the FLSA generally fare far better on a motion to decertify than one for conditional certification, and a recent case reflects that fact. In Seward v. International Business Machine Corp.pdf., Case No. 08-CV-3976 (S.D. N.Y., March 9, 2012), the plaintiffs sought to represent a class of … Continue Reading

The Southern District of New York Denies Conditional Certification of Proposed Overtime Class of Store Managers

By Jeffrey Vlasek on July 15, 2011 Posted in FLSA, Overtime Claims, Wage and Hour

Plaintiff Given a Bitter Pill to Swallow in Vitamin Shoppe Just as Harry Potter or Transformers will rule over the summer box office, the Supreme Court’s decision in Wal-Mart v. Dukes will undoubtedly reign supreme over the employment law class and collective action discussions for the summer of 2011. But even amidst the big-budget thrills … Continue Reading

Court Decertifies FLSA Class of AT&T Mobility Retail Workers

By Greg Mersol on May 23, 2011 Posted in FLSA, Overtime Claims, Retail

As we have commented before in this blog, courts considering certification of collective actions under the FLSA often use the two-step procedure generally attributed to the court in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987). Under that procedure, the court first determines whether to “conditionally” or “provisionally” certify the class. This first step typically relies … Continue Reading

Another Court Denies Certification of a Class of Retail Loss Prevention Associates

By Greg Mersol on April 21, 2011 Posted in FLSA, Overtime Claims, Primary Duties Test, Retail

We just wrote about a recent case in which a court refused to certify a class of Wal-Mart loss prevention employees. See Bramble v. Wal-Mart Stores Inc., Case No. 09-04932 (E.D. Pa. Apr. 11, 2011). In the Bramble case, the court found that the duties of the employees were simply too diverse to justify even conditional … Continue Reading

Court Decertifies Overtime Collective Classes of Fitness Trainers and Managers

By Greg Mersol on March 9, 2011 Posted in Class Certification, FLSA, Overtime Claims, Wage and Hour

We’ve commented in this blog in the past about the viability of classes that have been conditionally certified under the FLSA and that many are ultimately decertified. Another case underscores the importance of the distinction between conditionally certified classes under the FLSA and those that survive a motion to decertify. This case also underscores the … Continue Reading

Court Denies Conditional Certification of Assistant Manager Overtime Claims

By Greg Mersol on February 18, 2011 Posted in FLSA, Overtime Claims, Primary Duties Test, Retail, Wage and Hour

A recent case for the Western District of New York demonstrates that little is certain in class action litigation. In Omiatek v. Big Lots, Inc.pdf., Case No. 09-CV-0352S(Sr) (W.D. N.Y. Jan. 20, 2011), the court bucked two trends and (1) denied conditional certification (2) of a proposed class that consisted of assistant managers. A little … Continue Reading

Another Court Decertifies An FLSA Class

By Greg Mersol on October 18, 2010 Posted in Conditional Certification, FLSA, Nonexempt Status, Wage and Hour

As we wrote on August 31, many plaintiffs and defendants assume, if often implicitly, that conditional certification of an FLSA class is tantamount to a win for the plaintiffs. This is so even though conditionally certified classes are frequently decertified later in the case. In fact, conditional certification, despite having the name “certification” in its … Continue Reading

Preliminary Certification Is Not The End

By Greg Mersol on August 31, 2010 Posted in Class Certification, Conditional Certification

Many courts today use the two-step procedure described in Lusardi v. Xerox Corp., 99 F.R.D. 89 (D.N.J.1983), to decide whether to certify potential classes under section 16(b) of the Fair Labor Standards Act. Under that procedure, the court the court looks at certification twice, first before much discovery is done, and again at the close … Continue Reading