Are Employment Collective Actions Safe From Dukes?

There has been much discussion in the legal world about the impact of the Supreme Court’s June 20, 2011 decision in Wal-Mart Stores, Inc. v. Dukes, including on this blog. Not surprisingly, following Dukes,  employers have attempted to de-certify employment collective actions, as well as  employment class actions. Recently, at least two federal judges have declined to de-certify employment collective actions.

In Hernandez v. Starbucks Coffee Co., Starbucks assistant managers asserted that the coffee company violated the FLSA when it misclassified them as managers who were not entitled to overtime. The employees said that their primary responsiblities were not managerial and, as a result, they were entitled to receive overtime pay. On June 29, 2011, Magistrate Judge Snow of the Southern District of Florida rejected Starbucks’ argument that the plaintiffs had to rely on highly individualized inquiries into their day-to-day actions to determine whether plaintiffs performed management duties and were therefore  exempt from the overtime requirements.  He said that the employees must present  similar claims, but they need not be identical.

A few days later, on July 1, 2011, Judge Zouhary of the Northern District of Ohio concluded that the “concerns expressed in Dukes did not exist” in Creely v. HCR ManorCare, Inc. because Dukes involved millions of individual employment decisions concering hiring and promotions.The issue in HCRManorCare, on the other hand,  was whether company-wide policies, as implemented, resulted in the failure to pay plaintiffs for all the time they worked. HCR Manor Care was brought under the FLSA on behalf of employees whose pay was subject to an automatic meal break deduction, even when they performed compensable work during their meal breaks.

So far, so good. It seems that collective actions are safe from Dukes. Let’s hope it stays that way.

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Abbey Spanier, LLP, located in New York City, is a well recognized national class action and complex litigation law firm.