Defense Attorneys for Employer Successfully Defeat Plaintiff Lawyer’s Motion to Conditionally Certify Class on Grounds that Employees Failed to Meet Eleventh Circuit’s Two-Part Dybach Test
Employees filed a putative class action alleging overtime pay violations of the federal Fair Labor Standards Act (FLSA). Saxton v. Title Max of Alabama, Inc., 431 F.Supp.2d 1185 (N.D. Ala. 2006). Over defense objections, the employees sought conditional class certification and permission to send notice of the class action to class members. The lawsuit alleged that the employer’s assistant managers were systematically denied overtime pay in violation of the FLSA, id., at 1186, despite the fact that the employer “has a policy, which store managers are directed to enforce, that assistant managers are not to work over 40 hours in a week,” id., at 1188. The district court agreed with class action defense attorneys that plaintiffs failed to satisfy the two-part test enunciated in Dybach v. State of Fla. Dep’t of Corrections, 942 F.2d 1562 (11th Cir. 1991), and therefore denied the motion.
Dybach “set forth a two-part test for determining whether a collective action under the FLSA should be conditionally certified”: (1) whether other employees want to “opt in” to the lawsuit, and (2) whether the class representatives “are ‘similarly situated’ with respect to both their job duties and their pay.” Saxton, at 1187 (quoting Dybach, at 1567-68). With respect to the first test, the district court found the evidence proffered by plaintiffs failed “to show a desire to opt-in to this particular case” even if the two undated affidavits were admissible. Id., at 1187. On the other hand, defense attorneys introduced 158 declarations from class members stating that they had “no interest in opting in to this lawsuit.” Id., at 1187-88.
With respect to the “substantial similarity” requirement, the district court found that plaintiffs failed to establish that the employer’s assistant managers were “similarly situated” to plaintiffs because (1) the employer’s policy prohibited assistant managers from working more than 40 hours per week, and store mangers were directed to enforce this policy, and (2) “Plaintiffs have not offered any testimony that they personally worked in excess of 40 hours as assistant managers for Title Max; nor any evidence that members of the proposed opt-in class did.” Saxton, at 1188. By contrast, the 158 declarations submitted by the defense confirmed that assistant managers do not work more than 40 hours per week unless they are paid overtime to do so. Id., at 1189.
NOTE: As part of its analysis, the district court quoted Eleventh Circuit authority that “The decision to create an opt-in class under [FLSA] § 216(b) … remains soundly within the discretion of the district court.” Saxton, at 1187 (quoting Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001).
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