Seyfarth Synopsis: A federal district court last week decertified and effectively grounded a collective action of O’Hare Airport janitorial staff who claimed that their employer forced them to work off-the-clock without compensation. This decision, Solsol v. Scrub, Inc., stands out as a significant victory for employers because, even though all of the workers who joined the suit worked in one location and alleged off-the-clock work, the Court found their circumstances not similar enough to proceed to trial on a representative basis.
Since at least October 2010, Scrub provided janitorial services at O’Hare airport. It did so pursuant to three types of contracts: (1) a contract with the City of Chicago to clean the domestic terminals; (2) contracts with airlines to clean gates; and (3) contracts with airlines to clean airplanes.
Plaintiffs, who worked for Scrub as janitors at O’Hare, sued Scrub, claiming that Scrub violated the FLSA in several ways. First, Plaintiffs claimed that Scrub only paid them for their scheduled, rather than actual, working hours. Second, Plaintiffs alleged that Scrub rounded their time in a way that undercompensated them. Third, Plaintiffs claimed that Scrub automatically deducted 30 minutes for meal breaks even when Plaintiffs worked during their breaks.
Plaintiffs alleged that Scrub did this to all its employees at O’Hare Airport, and the Court conditionally certified a collective action of Scrub employees who worked as janitorial staff at that airport. After discovery was complete, Scrub moved to decertify the collective action.
In deciding that Plaintiffs’ collective action would not fly, the Court considered three factors. First, it considered whether the Plaintiffs and opt-ins had similar factual and employment settings. It found that, even though all opt-ins worked at O’Hare, it was at least questionable that all opt-ins worked in the same location given the size of O’Hare. The Court found that the opt-ins worked on different shifts for more than 40 different supervisors, weighing in favor of decertification.
The Court found that the claims of the opt-ins varied. Some claimed they were required to start work 15 minutes before their scheduled shift time every day; others claimed they worked only a few minutes before the start of their shift; still others claimed they did not work prior to the start of their shift. Some claimed their lunch breaks were interrupted for work about once per week; others claimed their lunch breaks were interrupted every day; others claimed they never took a lunch break; and others claimed they took full lunch breaks every day. Finally, the Court found that each supervisor had his or her own rounding policy. Given this, the Court found that Plaintiffs and the opt-ins had different factual and employment settings.
Second, the Court considered whether Scrub had individualized affirmative defenses. It found that Scrub could claim that it overpaid some opt-ins and that the unpaid time for some opt-ins was so minimal that it did not support a claim.
Third, the Court considered whether allowing the opt-ins’ claims to be decided in one proceeding would be fair. The court found that the only way to determine the number of hours that each opt-in worked without pay would be through individualized inquiries. Whereas Plaintiffs argued that the Court could determine the amount of off-the-clock work by comparing each employees’ time card with the time for which they were compensated, the Court found that this was, by necessity, individualized.
Finally, the Court found that the claims of the opt-ins could not be decided on the basis of “representative” testimony, especially in light of their different factual and employment settings. The Court, therefore, concluded that the collective action was not clear for trial and decertified the case.
Implications For Employers
The Court’s decision in Solsol provides a practical illustration of the fate that awaits many conditionally certified off-the-clock cases. Whereas employers facing conditionally certified collective actions have cause for concern, employers should remember that the standard at conditional certification is low and that plaintiffs often have a difficult time meeting the standard at decertification and showing that the claims of all opt-ins can be decided in one trial. This case provides a practical illustration of the shifting leverage that begins shortly after decertification as discovery shows that opt-ins assert different claims for different alleged violations at the hands of different supervisors.