The Fair Labor Standards Act (FLSA), along with state laws like the New Jersey Wage and Hour Law (WHL), requires employers to pay overtime compensation to non-exempt employees after they have worked more than 40 hours in a week. 29 U.S.C. § 207(a), N.J. Rev. Stat. § 34:11-56a4. Overtime pay violations can deprive workers of substantial amounts of wages, but while these amounts are significant to these workers, they are often not enough to make individual legal actions worth the cost. State and federal laws allow people with relatively small claims to file a lawsuit as a class action on behalf of the massive number of similarly situated claimants, and the FLSA has a procedure for “collective actions.” A federal judge in New Jersey recently granted certification to a FLSA collective action, as well as several state-law class actions, in a suit for unpaid overtime. Rivet, et al. v. Office Depot, Inc., No. 2:12-cv-02992, opinion (D.N.J., Sep. 13, 2016).
In order to obtain certification as a class action under federal law, plaintiffs must establish four elements: numerosity of class members, commonality of legal or factual questions, representativeness of the plaintiffs’ claims, and ability of the plaintiffs to “fairly and adequately” represent the class. Fed. R. Civ. P. 23(a). The FLSA does not establish as many specific elements for a collective action, simply stating that the claimants must be “similarly situated.” 29 U.S.C. § 216(b).
The Third Circuit Court of Appeals, whose jurisdiction includes New Jersey, has identified examples of facts and circumstances that can establish or refute that claimants are “similarly situated.” Claimants who work “in the same corporate department, division, and location,” who “advance similar claims” and “seek substantially the same form of relief,” and who “have similar salaries and circumstances of employment” could be considered “similarly situated” for the purposes of an FLSA collective action. Rivet, op. at 4, quoting Zavala v. Wal-Mart Stores, Inc., 691 F.3d 527, 536-37 (3d Cir. 2011).
The plaintiffs worked as assistant store managers (ASMs) for the defendant, which operates a national retail store chain. They were paid overtime based on a “fluctuating workweek” (FWW) plan, which essentially involved a fixed weekly salary. Rivet at 2. The defendant, however, allegedly did not pay ASMs a fixed salary, which might violate federal regulations governing FWW plans. Id., citing 29 C.F.R. § 778.114(a). The plaintiffs filed suit under the FLSA and the WHL, and plaintiffs in other states joined their state-law claims to the lawsuit.
The court granted conditional certification as a collective action in 2013, but it dismissed the WHL claims. In 2015, it dismissed some plaintiffs from the case, including some who had filed for personal bankruptcy but failed to include the lawsuit in their list of claims, as well as some who failed to respond to the defendant’s discovery requests. The plaintiffs moved for final certification of the FLSA collective action and class actions under the laws of Colorado, Maryland, Oregon, and Washington, while the defendant moved to decertify the case.
The court granted final certification of the FLSA collective action and the state class actions. On the FLSA certification issue, it cited four factors in finding that the plaintiffs were non-exempt and similarly situated. A single set of policies governed all ASMs employed by the defendant, ASMs had consistently similar job duties, they had similarly limited authority over subordinate employees, and they had a limited role in hiring.
If you need to speak with a wage law attorney in New Jersey or New York, contact the Resnick Law Group online, at 973-781-1204, or at (646) 867-7997.
More Blog Posts:
Proposed Law Would Protect Rights of Workers in the “Gig Economy”, The New Jersey Employment Law Firm Blog, October 13, 2016
New Jersey Governor Vetoes Minimum Wage Bill, The New Jersey Employment Law Firm Blog, September 22, 2016
Department of Labor Expands Eligibility for Overtime Pay Under the FLSA, The New Jersey Employment Law Firm Blog, August 12, 2016
Photo credit: Tommy Hansen. (Original uploader was B.A.C. at da.wikipedia) [Public domain], from Wikimedia Commons.