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.

When companies oppose FLSA conditional certification motions in collective actions seeking unpaid overtime, they often argue that the proposed FLSA class is not “similarly situated” because the class members work in different departments of the plant or work at different job sites.  These arguments generally are intended to scare the court into believing that that collective litigation would be unmanageable.

In response to the above argument, Trial Lawyers should argue, among other things, that “subclassing” often enables the trial judge to efficiently manage FLSA classes consisting of different groups of class members.  Below, you will find citations to decisions in which the district court recognized the benefits of subclassing in granting FLSA conditional certification motions.  The decisions arise out of district courts in Texas, Illinois, Kansas, New York, Mississippi, Kentucky, Virginia, Pennsylvania, and Colorado.

Ryan v. Staff Care, Inc., 2007 U.S. Dist. LEXIS 49060, *13 n.3 (N.D. Tex. July 6, 2007) (while differences in employees’ pay classifications might demonstrate “the need for subclassing in this case,” such differences did not warrant denial of conditional certification) (more…)