Labor & Employment Law

Decertification of Class Not An Easy task

By Mark E. Tabakman, Esq.

When a FLSA class is certified, the defendants then have the opportunity to decertify the class at a later date.  The employer argues that the people who opted in to the class are dissimilar to those who started the suit and should be eliminated.  Thus, the employer hopes to fragment the class and have the court declare it a nullity.

Recently, Starbucks tried to decertify a class in an action brought by a group of assistant managers who claimed they were improperly denied overtime.  In this case, notice had been sent to 11,000 putative class members and 355 opted into the collective action.  The Company claimed the opt-ins were dissimilar and would require too much individualized examination, which is the antithesis of a "class" action proceeding.

The federal judge held that the individuals worked under the same job title and job description.  They all reported to the same supervision chain of command.  The Company had argued that the workers were employed under different immediate managers and worked at widely dispersed locations in thirty states.  The plaintiffs also had evidence that they were compelled to work off the clock.

Starbucks also argued that the small number of opt-ins showed that there was no common, overall policy relating to off-the-clock.  The court brushed that aside, finding that people have many reasons for not wanting to opt into an action.

Thus, employers will have two bites at the apple in defending a class action.  First, the employer argues, at the conditional certification stage, that no "class" of similarly situated people exists.  Second, the employer can then seek to decertify.  The best argument is dissimilarity, but some significant showing must be made in this regard or the class will stay as a whole, to the considerable financial detriment of the employer. 

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Full post as published by Wage & Hour - Development & Highlights on February 11, 2008 (boomark / email).