In some respects, one of the most difficult types of wage and hours lawsuits are so-called “off-the-clock” cases in which the employer has promulgated lawful time-keeping and compensation policies, but the plaintiffs contend that they were somehow discouraged from recording their time. These cases are almost impossible to handle on a class-wide basis because, virtually by definition, there is no company-wide illegal policy. For that reason, as we have noted previously, employers tend to be more successful in defeating certification, even at the conditional certification phase, in off-the-clock cases.

In Settles v. General Electric, Case No. 12-00602-CV-W-BP (W.D. Mo. Feb. 19, 2013), the plaintiff was a service technician assigned to repair GE appliances across one of its 96 geographic zones. He worked under one of 20 Consumer Service Managers the company used to supervise its service operations. He sought to represent a nationwide class of service technicians in claims for unpaid overtime based upon what he contended were four practices: (1) discouraging service technicians from recording overtime; (2) having practices that indirectly caused the technicians not to record overtime; (3) not compensating technicians for maintaining their equipment; and (4) not paying for compensable commuting time.

In considering the plaintiff’s motion for conditional certification, the court found that although his burden to demonstrate that the class members was “lenient”, it was “not invisible.” It found that the company did, indeed, have the same or similar compensation policies for the technicians, but that the policies appeared to be lawful. The problem, the court found with essentially each of the claims, was that there was no evidence that “managers knew about or facilitated the illegal overtime practices of which he complains and, thus, fails to establish that the employees were victims of a single decision, policy, or plan” on the company’s part. In some instances, the court noted that the claimed illegal policies appear to have been limited to a single area or even employee or, in one case, not to be supported by any competent evidence at all. Thus, the court denied conditional certification.

The two-step procedure now in vogue for the handling of FLSA collective action litigation was intended as a tool to assist in case management. It is, in fact, not even a part of the statute, but entirely the creation of courts attempting to manage such cases on their docket. Unfortunately, particularly in recent years and in particular jurisdictions, some courts have turned a blind eye towards practical considerations of case management and have conditionally certified cases that could virtually never survive the second-step decertification process. The Settles case reflects that many courts will continue to apply the standard, although leniently, and to deny certification of claims that will almost inherently require an individual analysis.

The Bottom Line: Another Court has denied certification of an off-the-clock case when the employer’s standard policies are lawful.