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, the 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 Massachusetts, Michigan, Pennsylvania, New Jersey, New York, and North Carolina overtime laws.
