A federal court in California declined to certify a class action under the FLSA, an action that was filed by financial sales representatives of US Bancorp in a case entitled Guess v US Bancorp. The plaintiffs wanted a nationwide class action, as many of these suits hope for and seek.
In numerous postings, I have observed that the threshhold for obtaining class certification in a FLSA class action is relatively low. There must be a common policy, plan or practice applicable to all potential, putative class members. In this case, the employer argued that the job titles and, more importantly, the job duties of the proposed plaintiffs varied tremendously and thus they were not “similarly situated” for class action purposes. The court agreed.
The plaintiffs had contended they were misclassified as exempt, were really non-exempt and therefore overtime eligible. The company argued that it employed 52,000 people nationwide and the job responsibilities differed widely from state to state and division to division. The key was that the plaintiff failed to make a sufficient showing that the work duties of all other financial services representatives were substantially similar to his.
This gives heart to employers. These class actions can be defeated if the proper evidence rebutting allegations of “similarity” can be adduced. The plaintiffs in this case, however, have been given the opportunity to offer additional evidence and re-file the class action motion. So, maybe, we will hear more of this. Maybe not.