Another Employment Collective Action Survives a Dukes Decertification Challenge

In our post yesterday, we discussed the fact that employers are attempting to use the U.S. Supreme Court’s Dukes decision to persuade courts to de-certify employment class and collective actions. There seems to be a trend in the employees’ favor in employment collective actions.

On July 21, 2011, a judge in the Eastern District of Pennsylvania denied the defendant’s attempt to decertify an employment collective action. In that case, current and former American Eagle Express Inc. delivery drivers sued the company under the Fair Labor Standards Act for unpaid overtime wages. The court conditionally certified the case as a collective action in May 2011.

AEX’s attempt to have the action de-certified was denied. The court explained that, in order to determine whether a group of plaintiffs is “similarly situated” and therefore able to obtain condition certification as a collective action, they need to do two things. The first is to make a “modest factual showing” that they have satisfied the similarly situated requirement. The judge said that his previous determination that the employees met the requirement was unaffected by Wal-Mart Stores, Inc. v. Dukes. During the second step of the collective action certification process, the court will conduct a specific factual analysis to make sure that each proposed employee member of the group is an appropriate plaintiff. But that does not happen until the close of class discovery. At that time, AEX can raise the question that was the subject of Dukes; whether AEX acted in a way that was common to all the employee members of the plaintiff group. If the answer is yes, the case will proceed as a collective action and if the answer is no, it will be de-certified. But until then, the case will proceed as a collective action.

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