It has become almost part of the plaintiff playbook to bring wage and hour claims despite lawful employer policies by claiming some sort of “class-wide” policy of deviating from those policies. Sadly, this tactic works at least as often as not in collective action litigation, where many courts are quick to conditionally certify even questionable claims with the expectation that the employer will simply settle them. A recent case from the District of Massachusetts shows that this is not always the case.

In Romulus v. CVS Pharmacy, Inc., Civil Action No. 13-10305-RWZ (D. Mass. July 12, 2017), the plaintiffs were hourly pharmacy shift supervisors and assistant managers. They contended that they were required to remain in their stores during unpaid meal breaks (which they contended constituted time worked) when no other manager was present. They alleged that they were entitled to overtime under Massachusetts law for that time. It’s not clear from the opinion why they did not assert FLSA claims, but based on the case’s prior procedural history, it may have been partly due to an effort to keep the claims in state court. See Romulus v. CVS Pharmacy, Inc., 770 F.3d 67, 70–72 (1st Cir. 2014).

The plaintiffs’ claim was based primarily on a combination of company policies that, among other things, required a shift supervisor not to leave the store when no other manager was present, provided for a 30-minute unpaid meal period, and required employees to notify management if they worked through a meal period. While these were all lawful, the plaintiffs contended that “commonality” existed because the company handbook did not specifically say that remaining in the store during a break constituted working time.

The court, however, viewed the matter differently. It found that the policies were, on their face, lawful. What the plaintiffs were actually claiming was that they were not paid for working time (assuming even that merely staying in the store constituted working time), something that would vary on an individual and store basis. Indeed, each of the four named plaintiffs gave a slightly different account of how he or she was allegedly not paid for such time at  a particular store. The court concluded that the claimed violations thus stemmed not from a companywide corporate policy, but from the decisions of individual managers.  The plaintiffs could not, the court found, cobble together a class simply by putting all of the claims under the umbrella of failing to pay for unpaid meal periods allegedly worked. Because of these necessarily individual facts, the claims lacked commonality under Rule 23(a)(2) and predominance under Rule 23(b)(3). The court therefore denied certification.

The Romulus case reflects the fundamental flaw in many off-the-clock class action cases, which is that by their very nature they almost always come down to individual employees, managers or locations. In this instance, the court engaged in the appropriate analysis to find at a relatively early stage that those individual claims dispelled any notion of a viable class.

The bottom line: Off-the-clock cases that rely on deviations from lawful practices likely lack commonality and predominance under Rule 23.