While this space frequently discusses decisions adjudicating the merits of FLSA plaintiffs’ “off-the-clock” claims, allegations that employees were not compensated for all hours worked, FLSA collective action litigation often does not reach this merits stage of the proceeding. Frequently, courts first review plaintiffs’ claims in the context of determining whether FLSA plaintiffs are “similarly situated” – an elusive and difficult two-stage inquiry. Recently, a federal district court in Pennsylvania analyzed whether a group of some 700+ opt-in plaintiffs in a putative collective action brought against funeral home operator Alderwoods Group were similarly situated. The Court held that they were not. Prise v. Alderwoods Group, 2011 U.S. Dist. LEXIS 101817 (W.D. Pa. Sept. 9, 2011).
Prise concerned claims brought by the named plaintiffs that they, and individuals holding a variety of other non-exempt job titles at defendant’s funeral homes, were not paid for time relating to: “(a) community work; (b) on-call work; (c) overtime preapproval; (d) training for insurance licenses; and, (e) meal breaks.” Id. at * 5.
In analyzing whether all 700 opt-in plaintiffs’ were similarly situated at the second, more stringent stage of the collective action process, the Court reviewed extensive record testimony from numerous plaintiffs across a number of states regarding the similarities and differences in the application of the allegedly “uniform” FLSA policies used by Defendant. This review constituted the required “fact specific review of each class member who has opted-in, taking into account factors such as employment setting, termination procedures, defenses asserted against various plaintiffs, and other procedural issues.” Id. at * 55. This analysis allows the court to consider “1. disparate factual in employment settings of the individual plaintiffs; 2. the various defenses available to defendant which appear to be individual to each plaintiff; and, 3. fairness and procedural considerations.” Id. citing Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir. 2001).
Under this test, the court concluded, particularly in light of recent Western District of Pennsylvania authority as well as the denial of class certification of similar claims in a California lawsuit against the same Defendant, that “each of the factors reviewed for the classes supports decertification…because [plaintiffs] did not set forth substantial evidence that the opt-in plaintiffs are similarly situated to the named plaintiffs. Testimony from sample plaintiffs and management in each class were inconsistent regarding [Defendant’s] compensation practice.” Id at * 86-87.
Prise represents a victory for employers, as the court required the plaintiff to not merely allege a common policy applicable to a broad class of employees, but to adduce evidence through the discovery process supporting such an allegation in order to proceed to trial on a collective action basis. Where plaintiffs failed to do so, the court determined that they could not proceed collectively. Collective action litigation continues to be costly and complex, and employers must continue to take risk management steps to minimize their exposure to FLSA claims, particularly broad collective actions.