By Gerald L. Maatman, Jr., Brandon Spurlock, and Nicolette J. Zulli
Duane Morris Takeaways: As the threat of wage & hour collective actions continue to pose litigation risks for businesses, especially given the typically low threshold to obtain FLSA condition certification, a recent Georgia federal court opinion offers a positive lesson for companies facing such actions where plaintiffs are unable to show that other similarly situated workers want to join the lawsuit. In Parker v. Perdue Foods, LLC, No. 5:22-CV-268, 2024 U.S. Dist. LEXIS 45542 (M.D. Ga. Mar. 14, 2024), Judge Tilman E. Self of the U.S. District Court for Middle District of Georgia denied Plaintiff’s motion for conditional certification in an FLSA 216(b) collective action on the grounds that Plaintiffs failed to demonstrate that other similarly situated workers desired to opt-in to the lawsuit.
Case Background
Perdue, “the third largest boiler chicken company in the country,” contracts with approximately 1,300 so-called “growers” — farmers who raise chickens for Perdue — throughout the nation. Id. at *2. Parker, a former grower for Perdue, filed a lawsuit seeking relief under the Fair Labor Standards Act (“FLSA”). He claimed that growers were entitled to at least the federal minimum wage and overtime pay, which Perdue did not pay them. Id. at *3. Specifically, Parker alleged that he often worked over 60 hours per week, was expected to be on call 24 hours a day, and, after paying for expenses, he was making a fraction of the federal minimum wage. Id. at *2 (internal quotations and citations omitted). Parker claimed that he and other growers nationwide were misclassified as independent contractors, when they were in fact employees. Id. at *3.
The parties engaged in six months of targeted discovery on conditional certification issues, including extensive written discovery, a Rule 30(b)(6) deposition, and the depositions of Parker and the sole opt-in plaintiff to the action. Id.
Plaintiffs sought to conditionally certify a proposed collective action that included at least 1,300 growers who raised chickens for Perdue under a Perdue Poultry Producer Agreement in the past three years. Id. at *5. Plaintiffs also sought the Court’s approval for a proposed notice to be sent to potential collective action members who met this definition, as well as Perdue’s disclosure of a list of individuals in the potential collective action so that notice could be sent. Id. at *6.
Perdue objected to conditional certification because, among other things, Plaintiffs failed to provide sufficient evidence to show that other growers in the nationwide collective action wished to opt-in. Id. Plaintiffs argued that the opt-in consent filed by the only opt-in plaintiff indicated that other growers desired to join the suit and would join if given notice, and that one or two opt-in plaintiffs are sufficient to permit conditional certification in the Eleventh Circuit. Id.
The Court’s Decision
Judge Self agreed with Perdue. He held that Plaintiffs failed to meet their burden of showing that there were a substantial number of growers who desired to opt-in to the collective action. Id. at *14. Accordingly, the Court denied Plaintiffs’ motion for conditional certification and dismissed the opt-in plaintiff from the suit without prejudice. Id.
The Court addressed the merits of Perdue’s objection under the first prong of the analysis of Dybach v. Florida Dep’t of Corrections, 942 F.2d 1562, 1567 (11th Cir. 1991). Dybach held that Plaintiffs bear the burden of showing that the individuals in the proposed collective action (1) “desire to opt-in” to the collective action and (2) are “similarly situated.” Because the Court found Plaintiffs failed to meet their burden on the first prong, it did not reach the issue of whether members of the proposed collective action were similarly situated. Id. at *6-7.
Importantly, the Court applied a somewhat heightened standard of scrutiny in this case because the Parties had already engaged in six (6) months of discovery focused on conditional certification. Id. at *7. The Court explained that although it typically applies a fairly lenient standard for conditional certification, the rationale for that standard disappears once a plaintiff has had an opportunity to conduct discovery. Id. In other words, the standard may become less lenient as the litigation progresses. Id.
The Court also highlighted that despite Plaintiffs having six months to conduct discovery and gather evidence for conditional certification, the only evidence they presented suggesting that other growers desired to opt-in to the case was (i) a single opt-in and (ii) statements from Parker and the opt-in that they believe other growers would be interested in joining the lawsuit. Id. at *10. Specifically, the Court noted that “one opt-in is insufficient to show substantial interest” in a proposed collective action “of over 1,300 individuals in 11 locations in nine (9) states across the country, even under the most lenient of standards.” Id. (emphasis added).
In addition to being unpersuaded by Plaintiffs’ position, which aimed to establish a bright line rule regarding the number of opt-in consents sufficient to satisfy its burden, the Court found that the declarations filed by Parker and the opt-in (stating that they believe other growers would be interested in joining the collective action) were speculative and thus insufficient. Id. at *11-12. Furthermore, the Court noted that in their depositions, both Parker and the opt-in conceded that they were not aware of any growers who wish to join the action. Id. at *12.
In the end, the Court opined that “[b]ottom line: two out of 1300+ just isn’t enough” for conditional certification. Id. at *13.
Implications For Employers
Perdue Foods provides specific and valuable insight for employers on how best to defend against conditional certification in cases where (1) the parties have engaged in discovery on conditional certification issues; and (2) the number of opt-ins who have consented to the action are nominal in comparison to the size of the proposed collective action. The decision provides a roadmap for employers as to FLSA conditional certification following the parties’ engagement in extensive pre-certification discovery targeted toward conditional certification. Namely, that the court may apply a heightened standard of scrutiny in such circumstances, thereby requiring Plaintiffs to show that more than just “one or two” opt-ins are interested in joining the action.