Hunton Employment & Labor Perspectives

In a recent ruling, the U.S. District Court for the Northern District of Illinois determined that a bartender’s evidence – affidavits from herself and her supervisor – were insufficient to obtain conditional certification on her Fair Labor Standards Act (“FLSA”) claim. Plaintiff Alexa Roberts brought suit against One Off Hospitality Group and several of its restaurants and management personnel (“Defendants”) alleging that she was deprived of wages and overtime compensation in violation of the FLSA, the Illinois Minimum Wage Law (“IMWL”), and the Illinois Wage Payment and Collection Act (“IWPCA”). Plaintiff alleged that she was required to clock in and out at the times of her scheduled shift even if she worked in excess of those times so that Defendants would not have to pay overtime. She further alleged that Defendants were aware that other employees were also working off the clock.

In support of her motion, Plaintiff attached her affidavit and the affidavit of her supervisor, but not of other employees. Plaintiff’s affidavit focused on her particular experiences. In denying her motion, the Court determined that the two affidavits were insufficient to make a “modest factual showing” that other similarly situated employees were victims of an unlawful policy. In order to obtain certification, the Court stated that Plaintiff would need to submit affidavits of other employees in support of her claims, especially given that the Defendants maintained facially lawful policies. Plaintiff’s motion was denied without prejudice, meaning that she could renew her motion after conducting additional discovery.

Although the Defendants submitted affidavits from approximately a dozen employees and managers, the Court noted that such evidence could not be considered at the certification stage, and that the arguments presented therein must be reserved for decertification. Additionally, the weighing of Defendants’ evidence was only proper at summary judgment or trial. The Court’s ruling emphasizes the importance for employers of ensuring that their wage and hour policies are facially compliant since they will affect the level of evidence that a plaintiff must present at the certification stage of an FLSA claim. The ruling also indicates that, despite the positive result for the employer here, declaration gathering is an important tool, but will not necessarily prevent the plaintiff from obtaining certification unless the employer obtains declarations from all other employees that contradict plaintiff’s claims such that plaintiff is unable to present any additional evidence at the certification stage.