Court approves of representative testimony in FLSA Collective Actions

Posted on: May 18th, 2011 by Steve Larson
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In a recent decision entitled Monroe v. FTS USA, LLC, 2011 U.S. Dist. LEXIS 11846 (W.D. Tenn. Feb. 7, 2011), the district court refused to decertify a class of over 300 cable installers who alleged that they worked off-the-clock. In particular, the court summarized the installers’ allegations as follows: “Specifically, Plaintiffs have presented evidence indicating that Defendants (1) altered technicians’ timesheets to eliminate or understate overtime hours; (2) directed technicians to either not report or underreport their overtime hours; and (3) discouraged the reporting of overtime by use of a piece-rate compensation system accompanied by the threat of being terminated or receiving less than a full work schedule if overtime was reported. Plaintiffs across the class allege these same practices.”

The defendant argued that the various installers’ proof was too “individualized” to warrant collective treatment. The district court disagreed, and, in doing so, included the following passage regarding the use of “representative testimony” in FLSA collective actions: “Defendants likewise assert that adjudication of Plaintiffs’ claims on a classwide basis is improper because the finder of fact must assess the credibility of the each plaintiff individually as to how much, if any, uncompensated overtime he or she worked. Defendants also argue that their defenses can only be raised individually. The Court first notes that many of the purported defenses Defendants identify are clearly amenable to classwide determination. This includes the issues of whether management knew of the methods being used to deny overtime pay and whether Defendants acted willfully, since, as stated above, showing notice of an illegal practice would surely place Defendants on notice of FLSA issues affecting more than the single individual who complained. Defendants’ other purported defenses are in effect other ways of asserting that the finder of fact must assess each plaintiff’s credibility, including how many hours he or she worked, what individual supervisors knew about the alleged uncompensated overtime, and whether the overtime work was pursuant to a supervisor’s instructions. The Court finds that the use of representative testimony in a collective action will not impair Defendants’ ability to effectively raise these issues. The plaintiffs who testify will do so in a representative capacity, and the issues Defendants raise concerning the nature and extent of the plaintiffs’ alleged uncompensated overtime may be broached with the testifying plaintiffs. While it will not afford the same level of forensic specificity as cross-examination of each plaintiff individually, a collective action under § 216(b) is not held to the same rigors as either a typical lawsuit or a class action under Rule 23 precisely because the FLSA contemplates that representative testimony may be used to adjudicate the claims of nontestifying plaintiffs and thereby arrive at an approximation of damages.”