Courts around the country have consistently held that declarations submitted by an employer on behalf of current employees are of little value in deciding whether a class should be certified.  This is because it should be of no surprise that these “Happy Camper” statements hold questionable value when they are obtained in the context of an employer-employee relationship.  Notably, the Southern District of Alabama in Longcrier v. HL-A Co, Inc., 595 F. Supp. 2d 1218 (S.D. Ala. Dec. 10, 2008) struck declarations obtained by a defendant where such statements were obtained in a manner that mislead and deceived the employees – employees who happened to also be potential class members.

Moreover, in determining whether potential class members are similarly situated or whether their claims are capable of classwide resolution, individual statements from employees created at the bequest of the employer have little value toward determining that issue.  For example, the Northern District of Ohio in Creely v. HCR Manor Care, Inc., 2011 U.S. Dist. LEXIS 61376 (N.D. Oh. June 9, 2011), a case involving inter alia overtime violations under the Fair Labor Standards Act (FLSA) and uninterrupted meal break violations, stated that it was not persuaded by 35 “happy camper” affidavits submitted by the defendant.  The court explained: “These affidavits are of little use at this juncture.  Just as courts have not traditionally required a plaintiff seeking conditional certification to come forward with some threshold quantity of opt-in plaintiffs [ . . . ] it is no more helpful for the employer to round up a small sample of favorable statements form employees.  [ . . . ]  While it is likely true that not all hourly employees will opt-in to the collective action, the Court’s function at this stage of conditional certification is not to perform a detailed review of individualized facts from employees hand-picked by [Defendant].”  Creely, 2011 U.S. Dist. LEXIS at **62-63.  See also Rindfleisch v. Gentiva Health Services, Inc., 2011 U.S. Dist. LEXIS 57949 (N.D. Ga. April 13, 2011).   In West v. Lowes Home Centers, Inc., the Western District of Louisiana granted conditional certification despite employer-obtained declarations stating that plaintiffs had not yet had the chance to depose the employees providing the declarations and further noted that such deposition testimony was not needed to support collective adjudication.  West, 2010 U.S. Dist. LEXIS 139737 (W.D. La. Dec. 16, 2010).

Companies opposing FLSA misclassification lawsuits regularly oppose class/collective certification by arguing that the determination of whether individual workers within a job title are exempt under the FLSA requires an “individualized” analysis that precludes class or collective treatment of the litigation.  This legal argument, however, almost always contradicts the company’s business practice of simply classifying all of the workers within the job title as exempt from the FLSA.

Here is the question we must ask corporate defendants in our FLSA misclassification cases:  If the determination of whether each individual worker really entails an “individualized” analysis, why doesn’t the company ever conduct such an analysis prior classifying each and every worker as exempt?  Corporate defendants will have difficulty answering this question where, as is often the case, they often are operating under the following double-standard:  When workers seek to enforce their FLSA rights in court, an “individualized” analysis becomes indispensible.  But when corporate executives decide to take away the FLSA rights of these same workers, sweeping, accross-the-board classifications of everyone as exempt are perfectly acceptable.

Fortunately, some federal courts are catching on to the hypocrisy of this double-standard.  In Morgan v. Family Dollars Stores, Inc., 2008 U.S. App. LEXIS 25187 (11th Cir. Dec. 16, 2008), the Eleventh Circuit Court of Appeals repeatedly addressed the double-standard in rejecting Family Dollar’s argument that the district court erred in certifying as a collective action an FLSA overtime lawsuit brought on behalf of over 1,000 Store Managers classified as exempt “executive” employees.  In one of several noteworthy passages, the Court wrote:  “Here, Family Dollar argues that the store’s size, sales volume, and location cause store managers’ job duties to vary and preclude a collective trial. The facts – that Family Dollar never examined how store managers spent their time and that none of those factors had anything to do with Family Dollar’s decision to exempt all store managers from overtime pay – counter Family Dollar’s argument in that regard.”  Id. at *76 n. 46.

Another great example of the above reasoning appears in Wang v. Chinese Daily News, Inc., 231 F.R.D. 602 (C.D. Cal. 2005):  “The Court rejects Defendant’s argument that the ‘overriding’ issue in this case is whether reporters and account executives are exempt or non-exempt from overtime requirements and that the Court must engage in an individualized inquiry into each reporter’s and account executive’s job duties, hours, and/or income in order to determine whether or not that individual should be classified as ‘exempt.’ . . . Defendant’s argument is unpersuasive because Defendant itself classifies all reporters and account executives as exempt. Defendant cannot, on the one hand, argue that all reporters and account executives are exempt from overtime wages and, on the other hand, argue that the Court must inquire into the job duties of each reporter and account executive in order to determine whether that individual is ‘exempt.’”  Id. at 613.