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.