Tag Archives: “two-step procedure”

Court Denies Conditional Certification of Proposed Class of Retail Representatives

By Greg Mersol on November 30, 2012 Posted in FLSA, Retail

We’ve written several times in the past about the two-step procedure now in vogue for the handling certification of collective actions under section 16(b) of the FLSA. Under that procedure, a plaintiff first moves for “conditional certification,” which, despite its name, means only that the court is authorizing notice to the potential class members, and … Continue Reading

Supreme Court Grants Certiorari On Issue Of Rule 68 Offers Of Judgment In Collective Actions

By Greg Mersol on June 27, 2012 Posted in FLSA

Rule 68 offers of judgment have often been rendered almost meaningless in employment class and collective actions amidst criticism by some courts that they would permit employers to “pick off plaintiffs” and to avoid class litigation altogether. As we have noted previously, these courts express little or no sensitivity towards the cost of class or … Continue Reading

Court Denies Conditional Certification of Putative Class of Restaurant Managers And Assistant Managers

By Greg Mersol on November 10, 2011 Posted in FLSA, Overtime Claims, Wage and Hour

As we have commented before, there are no class actions per se under the Fair Labor Standards Act. Rather, the plaintiffs must demonstrate that the proposed class members are “similarly situated.” In making that determination, most courts considering certification of classes under the FLSA now use a two-step procedure. At the first stage, they apply … Continue Reading

Unaccepted Offers of Judgment Ineffective in FLSA Collective Cases

By Greg Mersol on September 8, 2011 Posted in Class Certification, FLSA, Meal and Rest Periods

Plaintiffs frequently include collective action allegations in even run-of-the-mill FLSA cases. What if an employer concludes, however, that no matter how frivolous the underlying claim, the defense costs will be more than even an oversized settlement? In theory, an offer of judgment under Federal Rule 68 would be one avenue. By offering the plaintiff all … Continue Reading

Court Denies Conditional Certification of FLSA Class of Satellite Dish Technicians

By Greg Mersol on June 16, 2011 Posted in Class Certification, Conditional Certification, FLSA, Wage and Hour

It has been a good few weeks for employers in the satellite dish industry. Just last week, we wrote of the case of Espenscheid v. Directsat USA, LLC.pdf, Case No. 09-cv-625-bbc (W.D. Wis. May 23, 2011), in which the court decertified a class of satellite dish technicians only days before trial. In that case, the court, … 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

Court Denies Conditional Certification of Overtime Class of Loss Prevention Employees

By Greg Mersol on April 16, 2011 Posted in FLSA, Wage and Hour

Yet another court has denied conditional certification of an FLSA overtime case. While, for a time, courts seemed to accept motions for conditional certification uncritically, more courts are questioning the plaintiffs’ showing even at an early stage. These courts are also going to very purpose behind the two-step procedure and refusing to certify cases on … 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