By Gerald L. Maatman, Jr., Alex W. Karasik, and Zachary J. McCormack
Duane Morris Takeaways: In Andrews v. Bojangles OpCo, LLC, No. 3:23-CV-00593, 2024 U.S. Dist. LEXIS 163824 (W.D.N.C. Sept. 11, 2024), Judge Robert J. Conrad of the U.S. District Court for the Western District of North Carolina granted in part Plaintiffs’ motion for conditional certification of an FLSA collective action accusing Bojangles Restaurants, Inc. and Bojangles OPCO, LLC (collectively, “Bojangles”) of misclassifying Assistant General Managers (“AGM”) as exempt, which allegedly resulted in overtime violations. Plaintiffs sought to certify a nationwide collective action. While Judge Conrad granted the certification bid brought by two former AGMs, the Court limited the grant of conditional certification to workers within the State of North Carolina since the pleadings alleged unfair practices in nine Bojangles locations – all located within North Carolina.
This decision provides an excellent roadmap for employers to defend motions for conditional certification of FLSA collective actions in terms of how to limit the geographic scope of the putative collective action and therefore limit the size of the case.
Case Background
Bojangles is a chain of fast food restaurants, operating approximately 300 locations primarily in the Southeastern United States. On September 19, 2023, two former Bojangles AGMs filed a complaint alleging that Bojangles willfully violated the FLSA by classifying AGMs as overtime-exempt administrators while simultaneously requiring them to spend the bulk of their job on tasks typically assigned to hourly employees. Id. at *2. After Plaintiffs filed their complaint, two additional AGMs filed consents to join the lawsuit. Id.
In their attempt to conditionally certify the collective action, Plaintiffs argued that the putative collective members performed the same or substantially similar primary job duties, including the non-exempt tasks of cashiering, cooking, cleaning, and restocking products. Id. Furthermore, AGMs were required to cover hourly associates’ shifts when they were absent from work and that approximately 90% of AGMs’ time was spent doing manual work and customer service duties — the same tasks assigned to hourly associates. Id. at *8. Plaintiffs also claimed they lacked authority over personnel decisions, considering General Managers were required to make final decisions on employment matters. Id. at *9. Even though the AGMs were classified as salaried employees and did not receive overtime compensation for any hours worked over forty hours per week, they were scheduled to work a fifty-hour workweek, which often resulted in working more than fifty hours. Id. at *9. Furthermore, AGMs who worked at more than one Bojangles location expressed that the job duties performed as an AGM did not change from one location to another. Id. at *10.
The Court’s Decision
The Court granted in part Plaintiffs’ motion for conditional certification. Plaintiffs sought conditional certification for all AGMs who worked at any Bojangles location nationwide since September 19, 2020. Id. at *6. In response, Bojangles argued that Plaintiffs’ evidence to support its nationwide collective relates to only a small fraction of the geographic areas in which Bojangles operates. Id. at *12. Specifically, Bojangles observed that of approximately 300 Bojangles restaurant locations in multiple states, only nine North Carolina locations were represented in Plaintiffs’ pleadings. Id. Other AGMs mentioned by the Plaintiffs also worked at locations within North Carolina. Id.
Plaintiffs attempted to further persuade the Court of the nationwide collective by pointing to previous conditional certification orders by the Court which did not limit the scope of notice or require evidence to have a minimum threshold of geographic representation at the conditional certification stage. Id. at *15. The Court rejected this argument, holding that, “Plaintiffs fail to identify any authority where a nationwide class was certified on a similar record to the one currently before the Court . . . [A]lleging mere misclassification is not sufficient for collective certification, even at this stage.” Id. Accordingly, the Court held that while Plaintiffs’ evidence regarding AGMs in North Carolina warranted that conditional certification was appropriate within the State, Plaintiffs did not establish that conditional certification was appropriate nationwide.
The Court authorized a 90-day opt-in period including the establishment of a website and text messages for potential plaintiffs whose initial notice by mail and email were returned as undeliverable. Id. The Court also authorized reminder notices, as requested by Plaintiffs and ordered Bojangles to provide the names, dates of employment, addresses, and email addresses of potential plaintiffs. Id. Further, if any potential plaintiffs’ notice by mail and email become returned as undeliverable, Bojangles must provide their telephone number of the potential plaintiff. Id.
Implications For Employers
This decision provides a blueprint for one avenue to attack collective certification — limit the geographical scope of the putative collective action. Here, Plaintiffs failed to establish that nationwide conditional certification was appropriate where Plaintiffs did not provide evidence regarding putative collective members outside the State of North Carolina. Accordingly, employers should carefully examine representative evidence when crafting their opposition to motions for conditional certification.