Managers and Assistant Managers are on a roll when it comes to obtaining conditional certification of claims that they have been misclassified as exempt under the FLSA’s executive exemption. Most recently, Southern District of New York Judge Paul A. Crotty conditionally certified the FLSA claims of Assistant Store Managers employed by the CVS drug store chain. The decision appears at Cruz Hook-SuperX, L.L.C., 2010 U.S. Dist. LEXIS 81021 (S.D.N.Y. Aug. 5, 2010). Judge Crotty observed that, at the conditional certification stage, plaintiff’s burden to establish that other employees are similarly situated is “minimal” and merely requires a “modest factual showing.” The Judge also observed that the public policy underlying the collective action device favors conditional certification: “This Circuit reads [sec.] 216(b) as permitting, rather than prohibiting, the sending of notice to similarly situated individuals.” The Judge — like so many other judges — also rejected the company’s arguments that “variances” in the plaintiffs’ job duties defeated conditional certification, observing that “[a] fact intensive inquiry . . . is inappropriate at the notice stage.” In this regard, the Judge cited to numerous conditional certification decisions involving allegedly misclassified drug store managers. Finally, the Judge rejected as premature the company’s attempt to strike various Rule 23 class action claims arising under the Massechusetts, Michigan,Pennsylvania, New Jersey, New York and North Carolina overtime laws.

I just read an especially thoughtful opinion by Judge Catherine D. Perry of the United States District Court for the Eastern District of Missouri in an FLSA misclassification lawsuit entitled Kanatzer v. Dolgencorp, Inc., 2010 U.S. Dist. LEXIS 67798 (E.D. Missouri July 8, 2010). The decision is important in two respects. First, the Court finds disputed facts concerning the issue of whether plaintiff, a Dollar General Store Manager was properly classified as an FLSA-exempt “executive.” Applying the four factors described in 29 C.F.R. 541.700(a), the Court emphasized the common-sense notion that the amount of time a supposed “executive” spends performing non-exempt duties such as working the cash register, assisting customers, and performing other “hourly” tasks really DOES matter under the misclassification analysis. Second, the Court rejected Dollar General’s argument that, in calculating damages, plaintiffs’ economic expert was required to utilize the fluctuating workweek method (“FWM”) of overtime compensation. Here, the Court emphasized that the FWM cannot be applied retroactively since, among other reasons, the method requires that the employee actually received overtime pay. This opinion will provide guidance to retail employees seeking to vindicate their overtime rights.