Recently, we discussed the standard applicable to collective action certification of FLSA claims at the so-called “second stage”, which occurs after factual discovery. This is a more stringent standard than that applied to cases at the initial “conditional certification” stage, where courts apply a standard that varies from circuit to circuit, but is typically lenient. However, in a case defended by Jackson Lewis attorneys led by former USDOL Wage and Hour Administrator and current Jackson Lewis Wage and Hour Practice Group Leader Paul DeCamp, Federal Judge J. Phil Gilbert of the Southern District of Illinois recently rejected a plaintiff’s request for conditional certification of a group of store managers. Drew v. Shoe Show, 2011 U.S. Dist. LEXIS 106503 (S.D. Ill. Sept. 19, 2011).

Drew concerned the putative collective action claim of a plaintiff who worked as a store manager for one of defendant’s retail shoe stores in Illinois. She alleged that her primary duties were non-managerial and equivalent to those performed by hourly, non-exempt employees. Specifically, she alleged that she: 1) was not responsible for hiring or firing employees at the store; 2) was not given access to financials and other information relevant to store management; and 3) was subject to intense scrutiny and micromanagement from a district manager, who presided over several stores. In analyzing whether plaintiff’s evidence (which was not supplemented by affidavits of support from other store managers, or other current and former employees) satisfied plaintiff’s obligation to make the “modest factual showing” of a common policy required within the Seventh Circuit and many other courts necessary for conditional certification, the Court noted that in support of her motion, along with her own affidavit, plaintiff pointed only to corporate policies and a job description she believed were applied uniformly across defendant’s store managers.  However, she admitted that her beliefs about store manager duties, other than at her own store, were “based on her limited experience at two or three other [of defendant’s] stores and on several conversations she had with other store managers, but which she cannot recollect with any degree of specificity.” This allegation was further undercut by Defendant’s practice of classifying some store managers as exempt, and others as non-exempt, based on an individual analysis of their duties.

The court concluded that plaintiff had provided “no evidence that, beyond responsibility for those core functions [of store management], all store managers perform similar activities for the same percentage of work time such as they are similarly situated with respect to the question of whether they are properly categorized as exempt under the FLSA.” Absent this showing, the court found that plaintiff failed to meet her burden, and denied conditional certification. 

While defendants in putative misclassification collective actions continue to urge that courts should take the case-by-case, fact-intensive exemption analysis into consideration, many courts continue to permit conditional certification (and notice to putative collective action members) based solely on the affidavit of a named plaintiff alleging a uniformly-applicable job description applied to the duties of all employees holding the position. Employers should consider ease of certification in determining whether to apply a uniform classification to store managers (or any other job title), or to engage in a case-by-case duties analysis before reaching classification decisions. In the same vein, employers should consider the pros and cons of national policies and procedures and job descriptions.