A Magistrate Judge sitting the Southern District of New York denied, for the second time, a motion for conditional certification of a nationwide collective action against Barnes & Noble. It is well-settled that the burden for “first stage” certification is modest. Now, it would appear courts are willing to apply a “modest plus” approach after concluding discovery relevant to conditional certification. It also shows the potential positive impact the Supreme Court’s recent Encino Motorcars decision may have for employers opposing conditional certification.
Initially, the court denied conditional certification of a nationwide collective of café managers at Barnes & Noble. Undeterred, the managers again sought conditional certification, this time after the parties conducted thorough discovery on issues limited to conditional certification. Magistrate Judge Katharine H. Parker again denied conditional certification, finding that “the solicitation of additional opt-ins will raise more questions and prolong the resolution of this case” given the differences between putative class member.
Here, café managers bring familiar claims to the effect they were misclassified as being “exempt” under the FLSA. In her prior decision, Judge Parker denied conditional certification without prejudice given the lack of evidence as to whether the named plaintiffs were similarly situated to the putative class. She held that she could not “infer that Defendant had 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.”
Plaintiffs engaged in extensive discovery focused on conditional certification, including the production of more than 25,000 pages of documents, more than ten depositions, several written statements from opt-ins concerning their job duties, and obtaining contact information for 200 putative members of the putative collective so they could interview them about their job duties. Given this extensive discovery, Judge Parker held that she would apply a “modest plus” standard in this chapter to determine whether conditional certification was appropriate, rather merely requiring a “modest factual showing.”
Judge Parker’s analysis cites to the Supreme Court’s April 2018 decision in Encino Motorcars. In Encino Motorcars, the Court rejected the longstanding notion that FLSA exemptions should be construed narrowly. Although not faced with deciding whether the managers were in fact misclassified as exempt, Judge Parker cited to Encino Motorcars to set the stage for her decision on certification, stating that she would be guided by “the Supreme Court’s recent pronouncement about FLSA exemptions when evaluating whether Plaintiffs have met their burden of demonstrating the existence of common nationwide policies.”
Under this “modest plus” standard, Judge Parker again denied conditional certification. In relevant part, Judge Parker held:
In sum, even accepting as true that BN scheduled and directed Café Managers to perform non-exempt tasks, the evidence presented by Plaintiffs does not demonstrate that it is more likely than not that Plaintiffs were subject to a common policy applicable to all Café Managers nationwide requiring them to primarily perform non-exempt duties. It is not enough for Plaintiffs to present policies that BN scheduled or directed Café Managers to perform some non-exempt tasks, because the core issue is whether Plaintiffs have raised an inference that Café Managers’ primary duties were non-managerial.
Judge Parker further opined that, “Plaintiffs’ varying testimony suggests that some Plaintiffs may have performed more managerial duties than others underscoring the likelihood that…the Court may need to evaluate each Plaintiff individually to determine their primary duties.”
Lastly, Judge Parker disregarded the theory advanced by plaintiffs that the reclassification of a position from exempt to non-exempt shows that the position was uniformly misclassified previously.
This decision has tremendous value to employers defending against conditional certification motions. The “modest plus” standard and corresponding reliance on Encino Motors by, in effect, requiring Plaintiffs to show that the putative collective is subject not just to a common practice, but one that would actually violate the FLSA.
Christopher K. Collotta, Esq.
July 19, 2018