Seyfarth Synopsis: A New York federal court denied a motion for conditional certification of a nationwide collective action against Barnes & Noble. The ruling highlights that, even though the burden for “first stage” certification is modest, courts may not approve such motions without evidence that the named plaintiffs are similarly situated to the putative collective action members they wish to represent.
Plaintiffs’ counsel frequently cite the “low” burden required for conditional certification under the FLSA. But a recent decision in the Southern District of New York denying conditional certification highlights that some courts are willing to “do the reading” and not “skip pages,” and will actually review the plaintiffs’ proffered evidence to ensure that there is a factual nexus to bind the pages of the certification motion together.
Chapter 1: The Complaint
In Brown v. Barnes and Noble, Inc., the plaintiffs are former Barnes & Noble, Inc. café managers. They allege that they, and similarly situated others, were misclassified as exempt, and sought unpaid overtime and other pay under the FLSA and the New York Labor Law.
Chapter 2: The Conditional Certification Motion
Two months after filing the complaint, and before conducting any discovery, the plaintiffs moved for conditional certification of their FLSA claim. They argued that, because the café managers had been uniformly classified as exempt, were all reclassified as non-exempt, work under the same job description, and because Barnes & Noble maintains detailed policies, procedures and rules that control how the café managers, regardless of location, performed their work, that all such managers are “similarly situated” to the named plaintiffs.
Chapter 3: The Court’s Decision
Magistrate Judge Katharine H. Parker authored the court’s decision. Before getting to the main plot of this conditional certification story, Judge Parker dispelled three oft-cited theories advanced by plaintiffs to obtain conditional certification:
- that a uniform classification of exempt status, standing alone, can satisfy the low threshold for conditional certification;
- that the employer’s reclassified of a position from exempt to non-exempt shows that the position was uniformly misclassified previously; and
- that a common job description means the position is the same everywhere.
Judge Parker had little trouble untangling the plot on the first point, holding that a uniform classification of exempt status is not sufficient, in and of itself, to establish the commonality required for conditional certification. She was equally unpersuaded on the second point, and held that “there could be many legitimate business reasons for an employer to reclassify employees.” On the third point, Judge Parker reiterated prior decisions holding that “a common job description does not mean that conditional certification is per se warranted in every case.” In this case, she added, the job description “is of little utility…when, under Plaintiffs’ own theory of the case, [it] did not accurately reflect the duties they personally performed.”
In her final pages, Judge Parker held that based on the evidence before her, she could not “infer that Defendant had a de facto policies of requiring all 1,100 café managers to perform non-exempt work based on the personal experiences of the nine people who have joined this suit” and “nor can it infer such a policy from general assertions” and “cookie-cutter declarations.”
Epilogue: What’s Next?
Brown is another reminder that, despite the lenient standard for conditional certification under the FLSA, courts may assess the evidence rather than simply read the “Cliffs Notes” version of the parties’ submissions, and that, where appropriate, they will deny certification if plaintiffs have failed to show that they are similarly situated to others. It remains to be seen whether the plaintiffs will propose a sequel by filing a new motion with additional evidence or simply choose to litigate on behalf of the named plaintiffs alone. This decision—while perhaps not a scintillating beach read for summer—may still become a “best seller” for employers in fending off conditional certification motions.