This blog post was authored by Geoffrey Sheldon.

The Los Angeles Police Department (“LAPD”) employs approximately 10,000 sworn police officers in eight ranks from Chief of Police down to Police Officer.  These 10,000 officers work in various bureaus, areas, divisions and groups in at least 33 different work locations scattered throughout the vast City.  Since 2000, these officers have been subject to a written overtime policy which required them to record all overtime worked truthfully and accurately, whether pre-approved or not, in six minute intervals.  Despite LAPD’s policy, however, approximately 2,500 of the officers filed class action lawsuits alleging that the City violated the Fair Labor Standards Act (“FLSA”) when their supervisors supposedly subjected them and other officers to an “unwritten” policy that prohibited them from claiming overtime when the time worked was less than one hour.  On May 21, 2014, a federal District Court Judge granted the City’s motions to decertify the two class action lawsuits.  In these cases the City was represented by Brian Walter and Geoff Sheldon of LCW’s Los Angeles office.  Roberto Alaniz, et al. v. City of Los Angeles, CV 04-8592 GAF (AJWx) and Cesar Mata, et al. v. City of Los Angeles, CV 07-6782 GAF (AJWx).

A review of federal court filings nationwide documents a steady increase in FLSA lawsuits against public and private employers alike over the past several years.  This is likely due to the fact that FLSA lawsuits can be financially lucrative for plaintiff side attorneys because they are frequently brought as “collective actions,” i.e., multi-plaintiff lawsuits akin to “class actions”.  How did the City decertify the officers’ class claims?  In short, by going on offense in the litigation.

In addition to Los Angeles, LCW has defended many agencies against FLSA collective action lawsuits (as well as State law class action cases) over the years, including claims alleging that employers failed to pay overtime properly under a variety of theories (such as for missed meal breaks, pre and post shift “off-the-clock” work, donning and doffing time), for misclassifying employees as “exempt” from overtime and for failing to calculate employee regular rates of pay properly as required by the FLSA.

Like class actions, collective actions are usually initiated by a single employee who believes he or she is aggrieved but who seeks relief for a large class of fellow employees.  Litigating collective action lawsuits presents a unique set of challenges and can be costly for employers.  Nowhere is this more evident than with respect to the “class certification” process.  There is generally a two step process when the employees’ lawyer seeks certification of a FLSA collective action.  In step one, the named plaintiff brings a motion requesting that the court distribute a notice (usually by the employer or at the employer’s expense) to all “similarly situated” employees so they can decide whether to join the lawsuit as additional plaintiffs.  Courts apply a very lenient standard at step one, and in many cases conditional certification is granted based just on “substantial allegations” that the plaintiff employee and other employees are alleged victims of a single decision, policy or practice.

Step two generally occurs once discovery is complete, or at least substantially complete.  At this stage, courts evaluate (1) the disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to the employer with respect to the individual plaintiffs; and (3) fairness and procedural considerations.  In off-the-clock work cases, for example, employers may be able to defeat class certification by showing that their policy (and enforcement of their policy) clearly prohibits unauthorized or unreported (or under-reported) time and that deviations from the employer’s policy, were due to individualized employee decisions rather than a management sanctioned practice applicable equally to all.

Generally speaking, gathering evidence to defeat final certification requires conducting discovery through representative sampling instead of taking discovery from all opt-in plaintiffs (i.e., those who have chosen to join the case.)  Thus, a statistically significant representative sample of plaintiffs would be selected to speak for all plaintiffs.  Depending on the size of the class, this can mean scores – or sometimes hundreds – of depositions and written discovery requests.

If an employer and its legal team are proactive, some courts will consider the step two factors during stage one of the analysis (thereby saving the employer significant expense and potentially thwarting a collective action before it ever takes shape.)  In this regard, it is imperative for the employer to meet with and secure declarations from employees very early in the litigation to use in opposition to the motion for class certification.  If the employer can secure a significant number of declarations early on, for example, declarations establishing that at least a good number of employees comply with their employer’s overtime policy, the employer may be able to defeat conditional certification at step one.  This is an approach LCW has successfully utilized in some cases.  Mary Rosales, et al. v. County of Los Angeles, CV11-09423-R (MANx).

If the employer is not successful at defeating certification at step one, decertification can still be achieved with vigorous use of the discovery tools available.  In this regard, depositions of as many as possible of the plaintiffs who are selected to be the representative sample for the collective action are important.  Some opt-in plaintiffs join a collective action with the expectation they do not have to do anything and will receive compensation just for opting in.  Many of these plaintiffs will dismiss their claims rather than be deposed.  This (apart from the testimony they or others might actually give) can help convince a court that decertification is warranted.

In addition, carefully analyzing an agency’s payroll records can provide useful evidence to show that the plaintiffs are not “similarly situated.”  In the LAPD cases, for example, the district court was persuaded because a department wide look at the City’s payroll data evidenced widespread compliance with the overtime reporting policy.  The court also found that the officers’ proffered evidence was not persuasive because it was submitted in legally objectionable form, e.g., while the officers submitted hundreds of declarations in opposition to the City’s motions, they lacked specifics and were overly conclusory.

The bottom line is that, while collective actions are high stakes and expensive litigation, employers and their counsel can successfully defeat certification – either at step one or step two – with proactive efforts.  In other words, going on offense can be the best defense to a collective action.