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No E For Effort: FLSA Conditional Certification Fails Without Supporting Evidence

The U.S. District Court for the Southern District of Texas recently denied a plant supervisor’s motion for conditional certification of a proposed collective action under the Fair Labor Standards Act (FLSA), and dismissed the complaint’s collective action claims. 

In Thomas v. Argos USA LLC, the plaintiff employee was a plant supervisor whose employer “produces and distributes cements and aggregates.” The plaintiff claimed that he and other “similarly situated” plant supervisors were misclassified as exempt from overtime, and sought conditional certification of a collective action under FLSA Section 216(b). 

Curiously, the plaintiff did “not attach an affidavit or any evidence to his motion” for conditional certification. This omission proved to be fatal for his motion. The court explained that conditional certification requires a “showing that other similarly situated individuals want to opt in to the lawsuit,” and noted that the plaintiff had “provided no affidavit or otherwise shown that others desire to join this lawsuit.” Thus, despite the generally lenient burden under Section 216, the court denied the plaintiff’s motion for conditional certification due to the absence of any supporting evidence.

Moreover, in dismissing (without prejudice) the collective action allegations, the court explained that the plaintiff failed to “provide job titles or locations for these allegedly similarly situated employees,” and proposed an overbroad class definition of “all persons who . . . worked at any business that was owned, operated, and/or acquired by Defendant, who were not paid overtime . . . ” The court held that plaintiff’s conclusory assertions regarding other “similarly situated” employees were insufficient under the Twombly/Iqbal standard set in Ashcroft v. Iqbal and Bell Atl. v. Twombly.

The Thomas decision seems to be an example of a plaintiff relying too heavily on the lenient standard for conditional certification under Section 216(b) of the FLSA. However, employers defending collective actions should bear in mind that while the burden for first-stage conditional certification is low, it is not non-existent.

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume IX, Number 296


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.