In Banks v. RadioShack Corporation, three sales associates filed a putative collective action alleging that the Philadelphia area district manager altered and directed others to alter sales associates’ time records, depriving them of minimum wage and overtime pay in violation of the FLSA. The plaintiffs argued that all of the sales associates were similarly situated and conditional certification should be granted because the district manager’s directive applied district wide and affected all 289 sales associates in the district. The employer opposed the motion, arguing that the plaintiffs failed to point to any uniform district-wide policy to deduct break time, the allegation regarding a district-wide directive was speculative, and time card modifications were made for many legitimate reasons, usually because an associate failed to record time correctly. Accordingly, the company argued, the plaintiffs’ claims could not be proved with common evidence. The court denied conditional certification, finding the plaintiffs’ claims were not subject to common proof and they had failed to show the alleged directive to deduct breaks from employee time sheets had a uniform effect across the district. The court noted that it would have to look at each modified time sheet to ascertain the reasons for the modification to determine whether the deductions were warranted. In addition, individualized calculations would be necessary to determine whether the inclusion of the unrecorded time would have caused the regular rate to dip below minimum wage for that workweek, or resulted in unpaid overtime. 

Several days later, Judge Restrepo, the same judge who decided Banks, denied nationwide conditional certification in another FLSA collective action alleging failure to pay for time spent maintaining uniforms. In that case, Chandler v. Heartland Employment Services,* Judge Restrepo denied the motion, reasoning that the company’s policy that clothes be “unwrinkled” did not affect the putative collective action members in the same way, as the “unwrinkled” policy was implemented differently by facility, department and supervisor. The court further observed that liability turned on whether uniform maintenance was excluded from FLSA coverage by the Portal-to-Portal Act, which would require determining whether the preliminary and postliminary activity was an integral and indispensable part of the employees’ principal job duties, and in this case the job duties varied across departments so that it was impossible to resolve this issue collectively. 

These two cases are further examples of an increasing number of decisions in the Eastern District of Pennsylvania in which judges are taking a hard look at motions for conditional certification and determining there is insufficient classwide evidence to make collective action treatment appropriate. Other decision include: Holley v. Living; Williams v. Securitas Security Services USA, Inc.; Bramble v. Wal-Mart Stores, Inc.; and Bamgbose v. Delta-T Group, Inc.

*Littler represented the company in the case.