Authored by Mary Ahrens

In Omiatek v. Big Lots Inc., No. 09-CV-0352 (W.D.N.Y., January 20, 2011), a magistrate judge recommended that the district court deny the plaintiff’s motion for conditional certification under the Fair Labor Standards Act and for certification of the New York state claims under Federal Rules of Civil Procedure Rule 23.  In this misclassification/unpaid overtime case, the judge ruled that the job duties of the plaintiff assistant store managers (ASMs) differed so significantly that the plaintiffs’ claims could not be litigated on a collective or class basis. 

In making his ruling, the magistrate judge largely relied on a virtually identical nationwide lawsuit, Johnson v. Big Lots Stores, Inc., 561 F. Supp. 2d 567, 588 (E.D. La. 2008), in which the court ruled, after a seven-day bench trial, that the plaintiff ASMs’ claims against Big Lots could not be litigated in a collective action because their job experiences varied too much.  The Omiatek court agreed with this analysis and noted that the declarations and deposition testimony presented by the parties likewise showed that the ASMs’ job duties differed significantly.  Among other things, they differed in terms of the amount of managerial responsibility each ASM had (including hiring, firing and evaluating employees) and the amount of time that each ASM spent on non-managerial duties. 

Importantly, the ASMs who submitted declarations all stated that they perform non-managerial work at their discretion and that they continue to perform their managerial duties (such as supervising, directing work, training, and overseeing store operations) while they perform non-managerial work.  Although the procedural history in this line of cases is relatively rare, this opinion is useful in arguing that, where job duties vary, an analysis of each employee’s individual job experiences is necessary to determine his or her qualification for exempt status.  Further, by recognizing that an ASM could, concurrently with performing non-managerial work, perform management job duties, the court expressed an understanding of the realities of the workplace that courts too often have overlooked.