Ask any employment lawyer what the worst employment law is and I’d be willing to bet the overwhelming majority would answer, “the FLSA.” Although the Fair Labor Standards Act (FLSA) was written with the right idea in mind–to ensure employees are paid for the work that they perform–the law is sorely out of date and subject to gross abuse by employees and employees’ lawyers. Most of the FLSA cases I see look more like extortion than enforcement actions.
Despite the law’s rampant abuse, the number of suits filed under the FLSA continue to increase. There are any number of reasons for this. One (big) reason is the potential recovery for the plaintiffs’ lawyers. A victorious plaintiff in an FLSA claim is entitled to recover all of his reasonable attorney’s fees and costs. When the parties reach a settlement–which is overwhelmingly the case–the employees’ lawyer usually gets one-third of his clients’ recovery, often resulting in a disproportionately large payday for the lawyer even when his client receives a small sum.
Another reason for the popularity of FLSA claims is the easy standard for conditional certification. The burden is very, very low for a plaintiff seeking to conditionally certify a class of employees. And, once certification is granted, the likelihood of settlement increases exponentially.
Which is why I get particularly excited when I read about a decision denying conditional certification of a collective action under the FLSA. One such decision, Pennington v. Integrity Communications, LLC, was issued by a federal court in Missouri on October 11, 2012.
In Pennington, the two plaintiffs worked as cable installers. They alleged that they were improperly classified as independent contractors. They contended that they should have been classified as employees and, consequently, were owed back-pay overtime and other damages. The plaintiffs moved to conditionally certify a class of similiarly situated individuals and notify potential class members.
The court reiterated that the burden on the plaintiffs at this stage is low, explaining that, typically a motion for conditional certification is decided only on the plaintiffs’ affidavits. Here, the plaintiffs had, indeed, submitted affidavits, in which they averred that they regularly worked more than 40 hours per week–specifically, they averred that they worked, on average between 50 and “at least” 70 hours per week. The plaintiffs also averred that they were aware of other cable installers, who similarly worked more than 40 hours per week.
What the plaintiffs did not aver, however, was that those other installers weren’t paid at an overtime rate for those hours worked over 40 in a workweek. Because of this omission, the court denied the plaintiffs’ motion for conditional certification, finding that they’d failed to meet their burden to point to similarly situated individuals. As a result, the court denied the motion to certify a class.
And that is good news for employers. But there’s bad news, too. The decision is not a total victory for the employer. The plaintiffs will get another bite at the proverbial apple and are entitled to re-file their motion with revised affidavits. Nevertheless, every small win under the FLSA is an important one. And it’s important that the court adhered to the proper standard, instead of granting the motion in a rubber-stamp manner.
Pennington v. Integrity Commun’s, LLC, No. 1:12-cv-5 SNLJ, 2012 U.S. Dist. LEXIS 146296 (E.D. Mo. Oct. 11, 2012).