As Matter of First Impression in Eighth Circuit, Plaintiff in FLSA Class Action must Establish that Other “Similarly Situated” Putative Class Members Desire to “Opt In” to the Lawsuit as a Prerequisite to Conditional Class Certification Minnesota District Court Holds
Two former truck drivers filed suit against regional package delivery company Rowland Express for violations of the federal Fair Labor Standards Act (FLSA), the Employee Retirement Income Security Act of 1974 (ERISA) and Minnesota and Iowa state law, alleging that Rowland improperly classified its drivers as independent contractors instead of employees, thereby denying them overtime pay. Parker v. Rowland Express, Inc., 492 F.Supp.2d 1159, 1162-63 and n.1 (D.Minn. 2007). Plaintiffs filed a motion requesting that the court conditionally certify a class action under FLSA (technically a “collective action”) so that other Rowland employees may be provided an opportunity to “opt in” to the putative class action. Id., at 1162. Defense attorneys opposed class action treatment, arguing Eleventh Circuit precedent that conditional class certification requires a showing that other class members desire to “opt in” to the lawsuit. The district court denied the motion, holding as a matter of first impression in the Eighth Circuit that conditional class action certification and notice to putative class members is not warranted absent evidence that other similarly situated class members wish to join the action.
The class action complaint alleged that Rowland previously classified its drivers as “employees” and paid them overtime, but that after it became affiliated with DHL it changed the classification of its drivers to “independent contractors” and ceased paying overtime. Parker, at 1162-63. After conducting limited discovery, plaintiffs moved for an order conditionally certifying a FLSA class action on the grounds that plaintiffs “are ‘informed and believe’ that other drivers worked in excess of 40 hours per week and did not receive overtime compensation.” Id., at 1163. Defense attorneys opposed class action treatment, arguing in part that plaintiffs “failed to show that other ‘similarly situated’ individuals desire to opt in to this litigation,” id.
After discussing FLSA class actions and the FLSA’s requirement that the other employees be “similarly situated” to the plaintiffs but failure to define that term, see Parker, at 1163-64, the district court described the two-stage process generally followed in determining whether the plaintiffs are “similarly situated” to other putative class members: the first stage, known as the “notice stage,” involves a preliminarily determination “usually based only on the pleadings and any affidavits which have been submitted” as to whether notice of the class action should be provided in order to give putative class members an opportunity to “opt in”; the second stage involves a more in-depth analysis by the court into whether the plaintiffs are in fact similarly situated to the putative class, id., at 1164. At the first stage, the plaintiffs’ burden “is not onerous” but neither is it “invisible,” id.
Defense attorneys opposed class action treatment on the ground that there was no evidence that anyone else wanted to opt in to the lawsuit. Parker, at 1164. This was a matter of first impression in the Eighth Circuit, but “the Eleventh Circuit held that a district court ‘should satisfy itself that there are other employees … who desire to “opt-in”’ before conditionally certifying a collective action.” Id. (quoting Dybach v. State of Florida Department of Corrections, 942 F.2d 1562, 1567 (11th Cir. 1991). The district court agreed with Dybach, and held that “before a conditional-certification motion may be granted, a named plaintiff (or plaintiffs) must proffer some evidence that other similarly situated individuals desire to opt in to the litigation.” Id., at 1164-65. Without such a showing, there is no basis for a district court to conclude that class action treatment is appropriate, id., at 1165. The federal court summarized at page 1165, “Simply put, a plaintiff must do more than show the mere existence of other similarly situated persons, because there is no guarantee that those persons will actually seek to join the lawsuit. And, if those other, similarly situated persons were to decline to opt in to the case, no purpose would have been served by ‘certifying’ a collective-action ‘class’ – the case ultimately would involve no one other than the plaintiff.” To hold otherwise would permit any employee who believed that they had been denied overtime pay to file an FLSA class action complaint and send court-approved notice to every employee. Id.
Applying this new test to plaintiffs’ motion, the federal court found plaintiff failed to make the required showing because their evidence consisted of nothing more than “information and belief.” Parker, at 1165. “In the absence of at least some evidence indicating that others will opt in to this lawsuit, the Court perceives no basis to conclude that this is an ‘appropriate case’ for collective-action status-it is simply a lawsuit involving two plaintiffs.” Id., at 1165-66. Additionally, the district court held that “an FLSA plaintiff is not entitled to conditional certification simply to seek out others who might wish to join the action,” id., at 1166 (citations omitted). Additionally, the court found that the fact one of the named plaintiffs had worked for Rowland for 5 years, it was not unreasonable to require them “to submit evidence of additional drivers who desire to join this litigation before conditional certification is granted” because plaintiff “likely knows the identity of several other Rowland Express drivers.” Id., at 1166-67. Accordingly, the federal court denied the motion to conditionally certify the litigation as a class action. Id., at 1167.