Companies will often argue that conditionally certifying classes under the FLSA is not appropriate because some discovery has occurred. However, courts often reject such arguments.
For example, in Bunyan v. Spectrum Brands, Inc., the Southern District of Illinois only abandoned the two-step conditional certification approach following over 15 months of discovery by the parties during which the plaintiffs acquired a list of potential class members. 2008 U.S. Dist. LEXIS 59278, *13 (S.D.Ill. July 31, 2008). Other courts have also reluctantly applied an intermediate analysis only after (i) significantly more discovery was completed compared to this case; or (ii) informal notice was sent to potential opt-ins by the plaintiffs. See Bouaphakeo v. Tyson Foods, Inc., 564 F. Supp. 2d 870, 894-901 (N.D. Iowa 2008) (applying an intermediate analysis only after 300 individuals had joined the case and 22 depositions had been conducted by the parties); Basco v. Wal-Mart, 2004 U.S. Dist. LEXIS 12441 (E.D. La. July 2, 2004) (applying the intermediate analysis after approximately five years of litigation including six amendments to the complaint and the plaintiffs moving for Rule 23 class certification); Williams v. Accredited Home Lenders, Inc., 2006 U.S. Dist. LEXIS 50653, *11-12 (N.D. Ga. July 25, 2006) (“The Plaintiffs short circuited the process first by disseminating informal notice of the lawsuit and the opportunity to opt-in. Without court supervised notice, about 150 current or former loan officers, have filed consent forms to opt-in as Plaintiffs. The Defendant then sought and obtained the Court’s permission to take depositions of about 20 of the opt-in Plaintiffs.”).

Second, Maryland district courts have noted that it is improper to move beyond the initial conditional certification stage analysis until after the completion of all discovery. See Mercado v. N. Star Founds., Inc., 2011 U.S. Dist. LEXIS 43229, *3-4 (D. Md. Apr. 21, 2011) (second stage occurs after completion of discovery); Syrja v. Westat, Inc., 756 F. Supp. 2d 682, 686 (D. Md. 2010) (“in the second stage following the conclusion of discovery”). This is consistent with other federal courts that have rejected the application of a more stringent analysis following the completion of similar limited initial discovery concerning conditional certification. See e.g. Helmert v. Butterball, LLC, 2009 U.S. Dist. LEXIS 116460, *23 (E.D. Ark. Dec. 15, 2009) (refusing to apply a heightened analysis prior to the close of merits discovery); West v. Border Foods, Inc., 2006 U.S. Dist. LEXIS 96963, *9 (D. Minn. June 12, 2006) (analyzing the plaintiff’s motion for conditional certification under the initial stage despite the exchange of interrogatories and document requests, and three depositions of employees of the defendant); Lyons v. Ameriprise Fin., Inc., 2010 U.S. Dist. LEXIS 98496, *8-9 (D. Minn. Sept. 20, 2010) (“As an initial matter, [the defendant] argues for a ‘heightened’ or ‘intermediate’ standard rather than the lenient standard typically applied at the first stage, since some discovery has been conducted. The Court rejects this suggestion.”) (internal citations omitted).

As I recently was telling Pennsylvania (PA) and New Jersey (NJ) overtime lawyers and attorneys, paralegals often are entitled to overtime pay. Recently, in Black v. Settlepou, P.C., 2011 U.S. Dist. LEXIS 15493 (N.D. Tx. Feb. 14, 2011), the district court granted conditional certification in a lawsuit in which paralegals alleged that they were entitled to overtime pay. The opinion contains several passages that wage and overtime rights lawyers will find helpful. The one I liked best was the rejection of the defendant’s argument that conditional certification should not be granted because few individuals had joined the case at the time of the conditional certification motion. The district court rejected this argument, observing: “That would be putting the cart before the horse; there must only be a ‘reasonable basis’ to believe that other agrieved individuals exist.”

Many times employers try to squeeze unpaid work out of their employees by having them perform work during parts of an unpaid meal break period. However, the Secretary of Labor has promulgated regulations stating that:
Bona fide meal periods are not worktime. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating.
29 C.F.R. § 785.19 (emphasis supplied). Many courts have read this language to require an employee to be “completely relieved” from duty for the entire 30 minute meal period or the entire meal break should be paid. See Abendschein v. Montgomery County, 984 F. Supp. 356 (D.Md. 1997); Burks v. Equity Group, 571 F. Supp. 2d 1235 (M.D. Ala. 2008). The holding in Burks is of special note because the 30 minute meal breaks at issue in that case were only interrupted by approximately five minutes donning and doffing activities at the beginning and end of each break – providing workers with approximately 20 minutes of uninterrupted time to themselves. Yet, the Court held that the entire 30 minutes could be compensable.
Meal break violations such as this are typically found with employer timekeeping systems (such as Kronos) that are preprogrammed to automatically reduce an employee’s paid time by 30 minutes the purported meal break. Pennsylvania, New Jersey and New York overtime attorneys should be on the look out for unpaid meal break cases like these.

In opposing FLSA conditional certification, defendants often gather affidavits or declarations from the plaintiffs’ co-workers to rebut the allegations in the plaintiffs’ FLSA complaint or to demonstrate that plaintiffs are not similarly situated to the co-workers.  We have faced this litigation tactic on various occasions in our Pennsylvania and New Jersey overtime cases, most recently in a Philadelphia overtime case involving the right of hospital employees to be paid for time spent performing work activities during their meal breaks/lunch breaks.  Here is some caselaw that might help you next time you face this issue:

It’s not too surprising that defendants and their lawyers are able to obtain “happy camper” declarations/affidavits.  As one district court has observed:  “It is, of course, unlikely that potential class members would be unanimously supportive when most potential class members have an interest in maintaining amicable relationships at work.”  Jensen v. Eveleth Taconite Co., 139 F.R.D. 657, 664 (D. Minn. 1991); accord Siddiqi v. Regents of the Univ. of Cal., 2000 U.S. Dist. LEXIS 19930, *24-25 (N.D. Cal. Sept. 6, 2000) (citing cases).  Moreover, common sense dictates that “where the absent class member and the defendant are involved in an ongoing business relationship, such as employer-employee, any communications are more likely to be coercive.”  Belt v. Emcare Inc., 299 F. Supp. 2d 664, 668 (E.D. Tx. 2003); accord Kleiner v. First Nat’l Bank of Atlanta, 751 F.2d 1193, 1201-03 (11th Cir. 1985); see also Shores v. Publix Super Markets, Inc., 1996 U.S. Dist. LEXIS 22396, *9 (M.D. Fla. Nov. 25, 1996) (unlike information “that employees may review and analyze in the privacy of their own home, [an employer's] communications are disseminated at the workplace, by the very managers accused of propagating [illegal] practices”).  Consistent with this common sense notion, district courts handling FLSA conditional certification motions find little or no value in employer-obtained declarations.  See, e.g., Sjoblom v. Charter Comm., 2007 U.S. Dist. LEXIS 94829 (W.D. Wis. Dec. 26, 2007); In re Wells Fargo Home Mortg. Overtime Pay Litig., 527 F. Supp. 2d 1053, 1060-61 (N.D. Cal. 2007); Mevorah v. Wells Fargo Home Mortg., Inc., 2005 U.S. Dist. LEXIS 28615, *12-16 (N.D. Cal. Nov. 17, 2005).