September 27, 2020

Volume X, Number 271

September 25, 2020

Subscribe to Latest Legal News and Analysis

September 24, 2020

Subscribe to Latest Legal News and Analysis

Café Managers’ Second Attempt At Conditional Certification Fails

The U.S. District Court for the Southern District of New York recently foiled the second attempt by a group of Barnes & Noble café managers’ seeking conditional certification of their proposed collective action under the Fair Labor Standards Act (FLSA). 

In Brown v. Barnes & Noble, Inc., the plaintiff employees alleged they were misclassified as exempt and improperly denied overtime for hours worked in excess of 40 hours per week. They sought conditional certification of a collective action under FLSA Section 216(b) on behalf of all café managers. 

The plaintiff employees had moved for conditional certification earlier in the litigation, and that motion was denied. The parties then engaged in substantial discovery regarding conditional certification, including document production and depositions. The plaintiff employees again sought conditional certification, and the court again denied their renewed motion. In denying conditional certification, the court applied the “so-called ‘modest plus’ approach to conditional certification articulated in Korenblum v. Citigroup, Inc.” The district court upheld the magistrate judge’s denial of the plaintiff employees’ second motion for conditional certification. 

The plaintiff employees argued that they should have been required to make only the more lenient “modest factual showing” typically required to obtain first-stage of conditional certification. The court disagreed, finding the more demanding “modest plus” approach appropriate, given the “‘unique procedural position’ of this case—namely, that ‘the parties completed six months of discovery targeted to conditional certification,’” including “fourteen depositions and tens of thousands of pages in document discovery.” The court explained that conditional certification is a discretionary case management tool, and in light of the developed record, the court found that the use of the “modest plus” framework “made eminent sense.” 

The key takeaway from the Brown decision is that, given the heightened showing that courts may require when considering a more-developed record, employers defending collective actions under Section 216(b) of the FLSA may derive strategic advantages by pursuing more fulsome discovery before conditional certification. That discovery may provide evidence and arguments that affirmatively demonstrate a lack of cohesion among the parties to the putative collective action, in which case the plaintiff seeking conditional certification may carry a higher burden.

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume IX, Number 295


About this Author

Peter J. Wozniak Barnes Thornburg Chicago  Labor Employment

Pete Wozniak is a vigorous advocate who strives to help his clients navigate issues that can be fraught with challenges as painlessly and efficiently as possible. He is a candid and personable counselor, offering his clients direct advice by leveraging his deep experience performing a broad range of outcome critical functions for complex labor and employment matters.

Pete represents clients across a number of industries, including transportation and logistics, restaurants, retail, manufacturing, and temporary staffing. Handling a number of high profile matters, he identifies the...

Mark Wallin, Attorney, BT, Chicago, Labor Employment
Of Counsel

In order to provide the best counsel, Mark Wallin believes it is his role to understand his clients’ business needs so he can help them determine what resolution will provide the most benefit. His keen ability to understand his clients’ practical concerns allows him to advise on the best path to successfully resolve issues – whether through traditional litigation or negotiated resolution.

In the course of his practice, Mark has focused on providing the highest-level of service to his clients and building long-term relationships. Specifically, he defends employers in a wide range of employment matters including wage and hour class and collective actions, as well as complex, multi-plaintiff and single plaintiff employment discrimination claims brought not only by private plaintiffs but also initiated by the Equal Employment Opportunity Commission (EEOC).

Mark has successfully represented companies of virtually all sizes, litigating matters across multiple areas of the law, from the pleading stage through appeal. He has also represented clients in arbitrations and before administrative bodies.

Mark vigilantly stays abreast of cases, laws, and trends that may impact his clients coming out of the courts, Congress and the state legislature, as well as the U.S. Department of Labor, the EEOC, and state regulatory agencies. He strives to keep a watchful eye on how labor and employment related laws are evolving so as to proactively advise clients.

In addition to his regular legal practice, Mark has undertaken several pro bono cases including trying criminal jury trials in state and federal court, and representing indigent plaintiffs in civil rights matters as part of the federal Trial Bar.

Mark began honing his litigation skill during law school when he interned at the U.S. Attorney’s office for the Northern District of Illinois, where he handled both civil and criminal issues. He also interned for a judge on the U.S. Court of Appeals for the Seventh Circuit, which gave him a unique vantage of seeing the issues from the court’s perspective.