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This article is part two of a three-part series discussing how employers may successfully challenge class certification of lawsuits seeking overtime and minimum wages.  The federal Fair Labor Standards Act (FLSA) sets forth a unique procedure of “collective actions,” instead of “class actions.”  A collective action requires cumbersome procedures to get putative plaintiffs to join the lawsuit and person seeking to join the case must file with the court a written consent to join the case.  29 U.S.C.A. § 216(b) (“No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought”).  Peter Mavrick is a Fort Lauderdale employment attorney and a Miami employment attorney who defends the interests of businesses and business owners in employment law disputes, including lawsuits demanding wages and damages from alleged employment discrimination and retaliation.

At the initial stage of an FLSA collective action, a court will consider whether to grant “conditional certification.”  Conditional certification is a legal decision that will allow a plaintiff’s lawyer to seek discovery of other possible plaintiffs, and invite potential plaintiffs to join the lawsuit.  This is a very important threshold legal decision, and strategically an employer will want to work to persuade the Judge to refuse conditional certification.  A court will grant conditional certification if a plaintiff demonstrates a reasonable basis to believe that: (1) there are other employees of the Defendant who desire to opt-in and (2) that these other employees are “‘similarly situated’ with respect to their job requirements and with regard to their pay provisions.” Dybach v. State of Fla. Dep’t of Corrs., 942 F.2d 1562 (11th Cir.1991); see Calderone v. Scott, 838 F.3d 1101 (11th Cir. 2016) (“To maintain an opt-in collective action under § 216(b), plaintiffs must demonstrate that they are ‘similarly situated”).  The employee-plaintiff has “the burden of demonstrating a reasonable basis for crediting [his] assertions that aggrieved individuals existed in the broad class that [he] proposed.”  Haynes v. Singer Co., Inc., 696 F.2d 884 (11th Cir.1983).  Opt-in plaintiffs “need show only that their positions are similar, not identical, to the positions held by the putative class members.” Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208 (11th Cir. 2001).  While there is no bright line test in determining whether plaintiffs are sufficiently similar, the more legally significant differences that exist among the opt-in plaintiffs, the less likely it is that the court will determine that the group of employees is similarly situated.  Anderson v. Cagle’s, 488 F.3d 945 (11th Cir. 2007).

A plaintiff must also show that there are other employees who wish to opt-in to the suit before a collective action may be certified.  Dybach v. State of Fla. Dep’t of Corr., 942 F.2d 1562 (11th Cir.1991).  In making this showing, a plaintiff cannot rely on speculative, vague, or conclusory allegations.  Alvarez v. Sun Commodities, Inc., 12-60398-CIV, 2012 WL 2344577 (S.D. Fla. June 20, 2012).  An employer may prevail and avoid conditional certification by providing affidavits which are not sufficiently rebutted by the plaintiff’s affidavits.  Grayson v. K Mart Corp., 79 F.3d 1086 (11th Cir.1996); Kubiak v. S.W. Cowboy, Inc., 2014 WL 2625181 (M.D. Fla. June 12, 2014) (an employer may prevail on decertifying the class by showing that only a relatively small proportion of members of a class wish to opt-in).  The Mavrick Law Firm has successfully defended attempted collective actions by proving to federal and state Judges that the plaintiffs have not presented sufficient evidence that there is a true class of similarly situated plaintiffs.

If the employee prevails in showing that the plaintiffs are sufficiently similar at this stage, “notice is provided to the proposed group of employees, who must affirmatively opt-in to join the suit.” Roberson v. Rest. Delivery Developers, LLC, 320 F. Supp. 3d 1309 (M.D. Fla. 2018).

While it is strategically important for an employer to advocate against conditional certification, the employer will always have a second line of defense by “de-certifying” the class.  Courts refer to consideration of whether to de-certify the class as the “second stage” of the collective action.  A court order “de-certifying” the collective action will terminate the collective action. “This second stage is less lenient, and the plaintiff bears a heavier burden.”  Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233 (11th Cir. 2008).  At this stage, the court considers “(1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendant[s] [that] appear to be individual to each plaintiff; [and] (3) fairness and procedural considerations[.]” Id.  The decertification stage is especially important to successful defense against a collective action.  The attorney needs to assemble evidence and carefully identify evidentiary holes in the plaintiffs’ lawsuit that will demonstrate to the Judge that the alleged “collective action” is a pretext for joining a group of plaintiffs with disparate claims.

Peter Mavrick is a Fort Lauderdale employment lawyer and a Miami employment lawyer who represents the interests of businesses and their owners.  This article does not serve as a substitute for legal advice tailored to a particular situation.

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