Hunton Employment & Labor Perspectives

A federal district court in Florida recently declined to conditionally certify a nationwide collective action brought under the Fair Labor Standards Act (“FLSA”) because the plaintiff did not show sufficient evidence that she was similarly situated to other restaurant managers who wanted to join.

The plaintiff in Elliott v. Barbeque Integrated, Inc., Case No. 19-62426-AHS, worked as a salaried Kitchen Manager and Service Manager at two locations of Smokey Bones, a restaurant owned by the defendant, Barbeque Integrated, Inc.  The restaurant employed Kitchen, Service, and Bar Managers (“Managers”) and a General Manager at each location.  The plaintiff claimed that the restaurant wrongfully classified her and the other Managers as exempt from the overtime requirements of the FLSA because most of the work they performed included non-exempt duties such as working in the “expo” or “alley window,” which is typically performed by an experienced cook, and preparing work schedules dictated by software and approved by the General Managers.  Therefore, the plaintiff claimed that she and the other Managers were owed unpaid overtime compensation for all hours they worked over 40 in a workweek.

In her Motion for Conditional Class Certification, the plaintiff sought to certify all of the Managers who worked at the restaurant’s sixty-eight locations nationwide within the three-year statute of limitations.  In support, the plaintiff claimed that the restaurant maintained uniform policies and duties for its Managers across all of its locations nationwide, and pointed to the nationwide job descriptions for the Managers as an example.  The plaintiff also provided two affidavits, one signed by her and one by an unverified expert, to show that other Managers performed non-exempt duties just like she did.

The court refused to conditionally certify a nationwide class of Managers because the plaintiff failed to show that other exempt employees performed non-exempt work.  She only referred to the two Smokey Bones locations in Massachusetts where she was employed, and although she provided a job description, it did not show that exempt employees were required to perform non-exempt work.  The court noted that there must be more than “only counsel’s unsupported assertions that the FLSA violations [were] widespread and that additional plaintiffs would come from other stores.”  Therefore, the court held that requiring the defendant to produce the names and dates of employment for the other Managers was “an improper burden shift at this preliminary stage.”

Given the “not particularly stringent, fairly lenient, and flexible” standard for establishing that employees are “similarly situated” enough to conditionally certify a class, as noted by the court, this case provides good news for employers facing collective actions for alleged wage and hour violations under the FLSA.