For several years now, lawyers have been trying to create collective actions by finding one or two angry employees who think they were wrongly classified asand therefore entitled to overtime pay. By pairing two or more cases, attorneys try to turn simple litigation into massive and expensive collective-action claims.
Now some federal judges are rethinking those cases and determining that—unless it’s crystal clear that the few employees who came forward are truly similarly situated to initial plaintiffs—they will refuse to allow the case to go forward as a collective action. That’s good news for employers.
Recent case: David Keef and several other field engineers who were classified as exempt professionals filed a Fair Labor Standards Act () overtime suit. They alleged that all field engineers working for their company had the same job description and were all classified the same way.
Their lawyers asked the court to allow the lawsuit to go ahead on behalf of all the other field engineers.
The court refused. It pointed out that, among the few engineers who went to an attorney, none had exactly the same job even though they had the same job description. Some were new and had less experience and, thus, less on-the-job discretion. Others were very experienced and got lots of discretion. Some worked within their field of expertise, while others did not.
Because they were so dissimilar, the court said they had to sue separately. The lawsuit could not include all the other field engineers. (Keef, et al., v. M.A. Mortenson, No. 07-CV-3915, DC MN, 2009)
Final note: Remember that under the FLSA, it is the day-to-day activities and responsibilities that count, not the title or the job description. You can’t just call an employee an executive or professional and leave it at that.