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The U.S. District Court for the Northern District of Illinois, Eastern Division, granted conditional certification on the plaintiffs’ FLSA claims, but then denied the plaintiffs Fed. R. Civ. P. 23(b)(3) certification on their supplemental state-law claims based on the court’s finding that FLSA collective actions and state law class actions cannot be litigated together. The court reasoned that the plaintiffs could not satisfy Fed. R. Civ. P. 23(b)(3)’s superiority requirement because the FLSA collective action was now certified and proceeding. According to the court, allowing both types of actions to proceed would mean that some of the individuals included as part of the state-law classes (those who did nothing) would be excluded from the FLSA collective action (for failing to opt-in). The court thought that such a result would undermine congressional intent as expressed in the FLSA.

On appeal, the Seventh Circuit disagreed. First, the court found no categorical rule or case law against certifying a state-law class action in the same proceeding as an FLSA collective action. In addition, the court pointed to the familiar savings clause in the FLSA which states that no provision of the FLSA shall excuse non-compliance with any federal or state law establishing a higher minimum wage or a shorter maximum workweek. In other words, both FLSA collective actions and state-law class actions can peacefully co-exist in the same lawsuit.

On the issue of how to notify potential class members when both types of representative actions are certified (thus requiring opt-in and opt-out notices), the court acknowledged how the potential for confusion was a valid case-management consideration under Rule 23(b)(3)(D), but nonetheless failed to see how this notice problem was “any worse” than numerous other problems district courts face in managing class actions. According to the court:

It does not seem like too much to require potential participants to make two binary choices: (1) decide whether to opt in and participate in the federal action; (2) decide whether to opt out and not participate in the state-law claims.

Finally, the court noted that if an FLSA collective action were allowed to proceed separately in federal court while the state-law class action proceeded in state court, the situation would be much worse as the two courts would send uncoordinated notices to the putative classes. As a general rule, the court explained, it is preferable to have notice issued from a single court and in a unified proceeding.

This entry was written by Milton Castro.

The Eleventh Circuit affirmed the district court’s conclusion that certification of each claim was improper under Rule 23(b)(3) because individualized factual inquiries into whether each employee worked without compensation and, if so, for how long, would swamp any issues that were common to the proposed class. The court analyzed the gap period, break period and quantum meruit claims separately, but in each instance reached the same conclusion: that individualized inquiries would predominate with respect to each claim. Notable points made by the Eleventh Circuit in the discussion of each claim include the following:

Breach of Contract Claim (Gap Period)
• The time records the plaintiffs proposed to rely on did not provide common proof of any uncompensated work during gap periods, particularly in light of employee testimony about various non-work related activities that took place during gap periods and various personal reasons that employees listed for coming in early and staying late;
• Even if a contract to pay for such gap time existed (an issue the parties disputed that was not ruled on), an individualized defense existed as to whether an employee knew of FedEx’s policy prohibiting off-the-clock work and yet deliberately chose to engage in such work in breach of contract;
• Even if, as the plaintiffs asserted, the FLSA was incorporated into the alleged contract, an individualized inquiry would still be necessary to determine whether each employee voluntarily arrived early or stayed late, and whether the employee engaged in any work during that time (under 29 C.F.R. § 785.48(a) early or late clock punching may be disregarded if it was voluntary and no work was performed); and
• Even if, as the plaintiffs alleged, there was a policy requiring or encouraging employees to arrive early or stay late, it would not predominate individualized issues, as the record showed that many employees arrived early or stayed late voluntarily and purely for personal reasons.

Breach of Contract Claim (Break Period)
• The time records that the plaintiffs proposed to rely on might not be sufficient to prove that an employee actually worked during a break, which would then require individualized inquiries;
• Even if work occurred, there is no way to tell from those time records how long an employee worked during a break; and
• Even if a contract to pay for such break time existed (an issue the parties disputed that was not ruled on), an individualized defense existed as to whether an employee who worked during the break violated the terms of the contract.

Quantum Meruit Claim
• A quantum meruit claim is highly individualized and would require an inquiry into whether each employee expected compensation for non-work related tasks or for activities performed while the employee was supposed to be on break.

The Eleventh Circuit also affirmed the district court’s refusal to certify a class under Rule 23(b)(1)(A). The appellate court agreed that certification under this Rule is improper where, as here, the plaintiffs request compensatory damages in addition to injunctive relief. In fact, the court noted that the primary remedy sought by the plaintiffs was unquestionably monetary relief.

The Eleventh Circuit characterized Babineau as “round two” of the plaintiffs’ litigation against FedEx, because the same district court previously denied certification of a nationwide class of FedEx employees who asserted substantially similar claims in the matter of Clausnitzer, et al. v. Federal Express Corp., 248 F.R.D. 647 (S.D. Fla. 2008). The Eleventh Circuit referred to Babineau as an attempt by the plaintiffs to cure the defects that the district court identified in Clausnitzer, by limiting the scope of the class to Florida employees, adding the quantum meruit claim and altering the breach of contract claim. Nonetheless, as discussed above, the plaintiffs’ “round two” attempt at class certification has now been rejected as well.

This blog entry was authored by Aaron Reed.