One of the most popular flavors of FLSA collective action these days is a claim by exempt employees claiming that they are not really exempt, and so are owed overtime.  But those cases can be hard to certify, as the Second Circuit pointed out again Oct. 27 in Myers v. Hertz (PDF).

Plaintiffs were a group of “station managers” at Hertz rental car facilities in New York who claimed that they spent most of their time on non-exempt duties.  As in many of these cases, the written policy was fine:

Myers does not contend that the terms of Policy 2-50 are inconsistent with applicable administrative regulations; instead, … Myers disputes Hertz’s characterization of a station manager’s duties.

This approach — that the uniform job description is not unlawful but the plaintiffs in fact perform nonexempt duties most of the time, regardless of what the job description says — increasingly are having a difficult time getting certified as class actions under Rule 23 or collective actions under the FLSA, and rightly so.  Because the legality of the exemption turns on the job duties actually performed by the plaintiffs, the case necessarily will be dominated by individual issues about how each branch manager spends his or her day:

whether plaintiffs were entitled to overtime under FLSA … is a complex, disputed issue, and its resolution turns on exemption, which in turn will require the district court to decide a number of subsidiary questions … each of which may or may not be able to be proven in common with respect to all Hertz New York station managers.

The Ninth Circuit similarly turned away such a case recently against Wells Fargo, holding that although the uniform job description is certainly common to the class, that’s not enough to get a class certified.

It is possible to take this argument too far, and say that exemption is an inherently individualized inquiry that can never be decided on a common basis.  That is not the case.  Sometimes employers defend these cases by acknowledging that the proposed class essentially all did the same sort of work, but argue that that work satisfies the FLSA’s exemption tests.  A case of that kind may be able to be resolved on a class basis, because the common issues really predominate.  But where the applicability of the exemption turns on factual disputes about what the members of the proposed class actually do each day, and the evidence shows that there is variation in those actual duties, class certification is far more difficult.

So: before litigation begins, check your exempt job descriptions (how many times have you heard that advice?) and be sure that they describe an exempt position.  And when the case is filed, build the evidence to show that the actual work performed by those individuals varies from office to office or day to day.

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Photo of Mark W. Batten Mark W. Batten

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters…

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters and discrimination claims. Ranked by Chambers USA, Mark is hailed as “a fabulous lawyer, handling interesting and complex cases.” Clients “highly recommend him to anyone seeking litigation counsel in the Boston area,” as well as note “he is responsive, pragmatic and team-oriented, and offers excellent legal advice.”

He assists clients with all aspects of employment policies and practices, including hiring, termination, leaves, accommodation of disabilities, and other matters. Mark also handles diverse civil litigation, including litigation of noncompetition agreements, ERISA matters, discrimination and wrongful termination litigation in federal and state courts; proceedings before the Massachusetts Commission Against Discrimination; wage and hour matters; and labor arbitrations. He is also an experienced appellate attorney both in employment cases and other civil litigation, handling appeals at all levels in the state courts and in the United States Courts of Appeals.

Mark also has substantial experience with traditional labor matters. He regularly represents employers in a variety of industries, including a number of newspaper and media companies, in collective bargaining, practice before the NLRB, labor arbitrations, union organizing campaigns, and day-to-day advice on administration of collective bargaining agreements. He regularly advises clients in both union and non-union settings on diligence matters in corporate acquisitions and financings. He also has experience on behalf of securities firms in arbitrations before the NASD and NYSE of customer and employee complaints.

Mark also practices on behalf of newspapers and other media in newsroom litigation, including libel defense and representation of reporters under subpoena, and has substantial experience in litigation involving access to sealed records and judicial proceedings on behalf of media companies.

Before joining Proskauer, Mark was a trial attorney in the Civil Division of the U.S. Department of Justice in Washington, where he was lead counsel in major litigation for over two dozen federal agencies, ranging from the U.S. Air Force, the CIA, and the U.S. Secret Service to the Department of Housing and Urban Development and the National Endowment for the Arts.

Mark regularly writes and lectures on employment-related matters, including, for instance, MCLE’s Representing Clients Before the Massachusetts Commission Against Discrimination.

In his spare time, Mark is an experienced computer programmer, conversant in C, C++, and other languages. He has ported software between computer operating systems and has published several commercial computer games.