Tuesday, March 23, 2010, 1:50 PM

A Touch of Class - An Update

Although courts continue to follow the concept that only a "minimal showing" is necessary to obtain conditional certification of a collective ("class") action under the Fair Labor Standards Act, the more complex and varied the jobs are, the less likely that class treatment will be available. Consider the following recent examples: certification was granted in Khadera v. ABM Industries (WD Wash)(janitors); Marrero v. KRA Corp. (ED Pa)("career agents" for government consulting firm); Davis v. Terminix International (ED Va)(pest technicians); Ferrer v. Raines & Walsh & Sons (SD NY)(construction workers); and Martinez v. Cargill Meat solutions (D Neb)(meat processing production line personnel). Class certification was denied in Velasquez v. HSBC Finance Corp. (ND Cal.)(account executives handling loans, insurance and a variety of other financial products) and Combs v. Jennifer Convertibles (ND Cal)(plaintiffs wanted to represent "all employees" of furniture chain). In Salazar v. Butterball (D Colo), the union representing poultry processors was found to have acquiesced in the company's practices regarding donning and doffing, and the case was dismissed.

Likewise, attempts to expand already-certified classes or to define the class too broadly are meeting judicial resistance. In Murray v. Tyson Foods (CD Ill), nearly 1500 additional plaintiffs were denied leave to join into a case where the plaintiffs' attorneys had failed to move for class certification. Two out of three claims of Pizza Hut delivery drivers in Wass v. NPC International (D Kan) were booted dut to the vagueness of the complaint filed with the court. In Parker v. Smithfield Foods (EDNC), plaintiffs and the defendant jointly obtained a narrowing of the certified class to exclude personnel performing nonprocessing jobs.

Nor does the employer have to await lengthy discovery and a motion from plaintiffs' counsel to address the class issue. In Vinole v. Countrywide Home Loans, a case involving both federal and state wage-hour claims filed by "external home loan consultants," the employer filed a preemptive motion to deny class certification, asserting that a "highly factual, individualized analysis" of each employee's job was necessary. The District Court accepted that argument, and the US Court of Appeals for the Ninth Circuit agreed.

One of the most unusual decisions we've seen lately is Smith v. Johnson & Johnson. In her deposition, plaintiff Smith expounded on the independence she enjoyed from any but the most basic directions on how to perform her job, a posture which the trial court found fatal to her insistence that she was engaged in nonexempt work. On appeal, she tried to characterize her sworn statements as "puffery" - she insisted she had inflated her own importance. The Third Circuit was not impressed with this newfound modesty, and upheld the dismissal of the case.

It all goes to show that not all classes are certifiable, not all FLSA claims are meritorious, and even jurisdictions which have been seen as bad places for employers to litigate can be persuaded to listen to what an employer has to say. Careful analysis of the facts and the law by both plaintiffs and defendants can result in more care in whether complaints are filed at all, how they are handled, and how they are resolved.

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