Labor & Employment Law

Court Deals Blow to Employees' Proposed Class Action

By Mark E. Tabakman, Esq.

In a proposed overtime class action against mortgage lender Ocwen Loan Servicing LLC, the United States District Court for the Southern District of Florida denied the plaintiffs' request to conditionally certify a lawsuit as a collective action and notify potential class members. The court denied the request on the grounds that the plaintiffs failed to sufficiently show that other similarly situated employees exist.

The suit accused the residential mortgage loan provider of failing to pay its inside sales representatives overtime wages in violation of the federal Fair Labor Standards Act.

According to plaintiffs, the case should have been certified because three opt-in plaintiffs had demonstrated that their job requirements were similar and that they were subject to similar pay provisions and they had indicated that other individuals might also want to opt-in on the action.

The court disagreed with this reasoning. Indeed, the court found that the affidavits filed by two of the opt-in plaintiffs were too vague and too speculative to show that other similarly situated employees actually existed. The affidavits were vague in that no individuals were named and their statements were noncommittal. The court found this to be insufficient. Judge Zloch, who rendered the decision, stated 'it gives the court nothing to make a finding upon but the fact that plaintiffs are aware of others. Who these others are, whether they are similarly situated and whether they are actually interested in joining in this suit is all left to guess-work.' If other similarly situated employees did exist but were too scared to come forward, the plaintiffs' counsel could have ensured their names were not disclosed through 'a myriad of different devices,' such as filing under seal or asking for a protective order, Judge Zloch said.

The decision reflects the court's aggravation with these cases that are brought so frequently as attempted class actions without evidence, or indication from other employees, that they have also suffered they same. 

Full post as published by Wage & Hour - Development & Highlights on May 26, 2009 (boomark / email).