Ohio Federal Court Denies Conditional Certification In An Early Application Of The Sixth Circuit’s “Strong-Likelihood” Standard, Signaling A New Normal For Wage & Hour Lawsuits

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Kathryn Brown

Duane Morris Takeaways: In Hutt v. Greenix Pest Control, LLC, et al., No. 2:20-CV-1108 (S.D. Ohio July 12, 2023), U.S. District Judge Sarah D. Morrison denied plaintiff’s motion for court-supervised notice to potential opt-in plaintiffs under 29 U.S.C. § 216(b) in one of the first applications of the Sixth Circuit’s new standard for ruling on such motions in Clark v. A&L Homecare and Training Center, LLC, 68 F.4th 1003 (6th Cir. 2023). 

On May 19, 2023, the Sixth Circuit replaced the long-standing lenient test for facilitating notice under the Fair Labor Standards Act (FLSA) with a more rigorous test akin to the standard used to obtain a preliminary injunction.  Whereas under the prior framework a plaintiff need only make a “modest factual showing” that other employees are “similarly situated,” Clark requires plaintiffs to demonstrate a “strong likelihood” that “similarly situated” employees exist to warrant notifying other potential plaintiffs about the lawsuit.  

The Court’s opinion in Hutt sends a clear message that the “strong likelihood” evidentiary standard has teeth.  The ruling is a boon for employers defending FLSA claims on behalf of multiple employees. 

Case Background

In Hutt, the plaintiff, a former pest control technician, filed a Complaint against his former employer, Greenix, on February 28, 2020.  The plaintiff sought to recover unpaid minimum wages and overtime wages allegedly owed to him under the FLSA.  He alleged that Greenix failed to pay him an overtime rate of pay for overtime hours worked, did not pay for certain tasks performed “off the clock” and took improper deductions from his pay.  In his Complaint, the plaintiff alleged that approximately 186 other pest control technicians were subject to the same wage violations as he had experienced.

On February 27, 2022, the plaintiff filed a motion for conditional certification.  The plaintiff sought to issue notice to all pest control technicians employed at any of Greenix’s four facilities in Ohio during the three-year period before he filed the Complaint.  In support of the motion, the plaintiff relied on his own declaration, various pleadings, and Greenix’s responses to written discovery requests.  Greenix opposed the motion.  Although the motion was fully briefed, the Court held the motion in abeyance pending the Sixth Circuit’s ruling in Clark.

Following the Sixth Circuit’s ruling in Clark, the Court ordered the parties in Hutt to brief the issue of whether the plaintiff could satisfy the new, stricter standard to facilitate notice under 29 U.S.C. § 216(b).  In the plaintiff’s supplemental brief, he argued that he had submitted enough evidence to satisfy the new standard.  The plaintiff emphasized Greenix’s prior statement in a discovery response that each of its Ohio facilities had consistent pay policies.  In its supplemental brief, Greenix asserted that its statement did not mean that all putative class members perform the same job duties or work the same schedules, among other arguments.

The Court’s Decision

The Court held that the plaintiff fell short of the evidentiary showing necessary to demonstrate a “strong likelihood” that there is a group of potential plaintiff employees “similarly situated” to him under the standard in Clark.

First, the Court explained the FLSA is silent as to the procedure for a plaintiff to advance claims with others who are “similarly situated.”  In the absence of statutory guidance, courts have exercised their discretion to set the procedure governing collective treatment of FLSA claims.

For this reason, the Court analyzed the two-step standard announced in Clark.  The first step evaluates whether the plaintiff has shown a “strong likelihood” that other employees are similarly-situated to the plaintiff.  Overcoming the first step requires a plaintiff to submit evidence that the plaintiff’s FLSA injury “resulted from a corporate-wide decision” to violate the FLSA, not human error or a rogue manager.

Under the second step, the plaintiff must prove, by a preponderance of the evidence, that the employees who have opted to join the lawsuit are similarly situated to the plaintiff.  If the plaintiff makes that showing, the opt-in plaintiffs become actual parties to the lawsuit and proceed with the named plaintiff to trial.  As the Court reasoned, the Sixth Circuit’s opinion in Clark left the second step of the analysis relatively unchanged from the prior standard.

In assessing the plaintiff’s status as similarly-situated to others, the Court opined that no single factor is determinative.  Among the relevant factors are whether the named plaintiff performed the same tasks and was subject to the same policies as the potential other plaintiffs, whether the potential other plaintiffs are subject to individualized defenses, and whether other potential plaintiffs have submitted affidavits.

In applying the Clark standard, the Court found insufficient the plaintiff’s reliance on hearsay statements in his own declaration, including what co-workers allegedly told him, to argue that Greenix had company-wide pay practices.  Further, the plaintiff put forth no evidence of the company’s actual compensation plan.  The Court explained that even if the plaintiff proved that Greenix has a company-wide compensation plan, that fact alone would not prove company-wide FLSA violations.  In essence, the Clark standard required the plaintiff to show more.

Therefore, the Court denied the plaintiff’s motion seeking court-supervised notice to potential plaintiffs pursuant to 29 U.S.C. § 216(b) of the FLSA.

Implications For Employers

The ruling in Hutt has persuasive value to other district courts in Ohio, Tennessee, Michigan and Kentucky.  Gone are the days of plaintiffs in the Sixth Circuit winning the right to send notice to dozens, hundreds, or even thousands of other employees on hearsay evidence alone.  The Court roundly rejected the notion that a sole declaration from the named plaintiff is enough to obtain court-sanctioned notice.  It remains to be seen how other courts will apply Hutt to a different set of facts.

Given the emerging trend among federal courts across the country in rejecting the lenient two-step standard, the decision in Hutt is an indicator of a major shift in leverage from plaintiffs to defendants in FLSA litigation.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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