October 1, 2012

By: Shelly R. Pagac

On August 17, 2012, the federal district court for the Western District of Pennsylvania denied a claim by two former security officers to certify a class action under the Fair Labor Standards Act (“FLSA”) against the firm’s client, Guardsmark, LLC.  In Hall and McCombs v. Guardsmark, No. 11-213, 2012 WL 3580086 (W.D. Pa. August 17, 2012), Judge Mitchell held the Plaintiffs failed to satisfy the “modest factual showing” standard necessary to obtain conditional certification of the proposed collective action.  The Plaintiffs claimed that they had been required to work “off the clock” without being paid, and that they were entitled to be paid for maintaining their uniforms. (Guardsmark had successfully convinced the Plaintiffs to withdraw an earlier claim regarding meal breaks.)  Because so many employers are facing FLSA suits, the reasoning from the Court’s decision will be helpful to other employers defending these claims.

First, the Court ruled that Plaintiffs could not make a “modest factual” showing that they were similarly situated to other potential class members because the named Plaintiffs had been terminated more than three years before the motion to certify the class had even been filed.  One of the factors in determining whether the plaintiffs are similarly situated is whether the claimed discrimination occurred during different time periods and by different decision makers.  Hall and McCombs left their employment with Guardsmark in July, 2009.  Since notice would not have been sent until August, 2012, at the earliest, the proposed class would consist of security officers “asserting FLSA violations beginning August 2009 and thereafter.”  Stated slightly differently, the proposed class would not have included the named Plaintiffs.  Therefore, the court found any opt-ins would not be similarly situated because they were not within the same temporal time frame.

Second, the Court found it significant, although not determinative, that the Plaintiffs had not submitted any affidavits from any other potential opt-in members.  The Court stated it was not holding that Plaintiffs are required to submit affidavits, but was “merely concluding that the presence of such affidavits would bolster Plaintiffs’ motion for conditional certification and that the absence of such affidavits weakens their case.”  In defending the claim, Guardsmark had submitted affidavits from other security officers from its Pittsburgh, Harrisburg and Philadelphia offices that they had not been required to work before or after their shifts without being paid.

Third, the Court refused to credit “hearsay” included in Plaintiffs’ declarations, particularly where the “hearsay” was directly contradictory to statements the Plaintiffs each made in their depositions.  For example, Plaintiff Hall stated in her declaration that she talked to other potential class members who had similar experiences, yet testified during her deposition that she had talked to no other employees regarding the alleged policies.

Fourth, as for Plaintiffs’ claim that they should be paid for washing their uniforms, the Court found there was no evidence the uniforms were similar throughout Pennsylvania.  The Court noted that because “the two named plaintiffs do not concur about the uniforms they wore or the maintenance required of them, the Court cannot infer that Guardsmark employees have similar claims for uncompensated time spent maintaining Guardsmark uniforms.”

Based on Judge Mitchell’s decision, the following lessons can be learned:  first, analyze the time frame plaintiffs are proposing and whether the plaintiffs and opt-ins have temporal similarity.  Second, submit affidavits supporting the employer’s position, and how the policy was actually applied.  Third, attack the plaintiffs’ declarations for hearsay, inconsistency or other inadmissible evidence.

Although FLSA claims are now routinely being filed, employers can prevail.  Our firm is prepared to draw upon the experience of our accomplished litigators and our aggressive approach to defending these claims to assist employers – large and small – and prevail as we did here.