{"id":3389,"date":"2026-10-30T10:15:47","date_gmt":"2026-10-30T14:15:47","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=3389"},"modified":"2026-10-30T10:15:48","modified_gmt":"2026-10-30T14:15:48","slug":"new-jersey-federal-court-affirms-modest-factual-showing-required-during-conditional-certification-of-flsa-collective-action","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2026\/10\/30\/new-jersey-federal-court-affirms-modest-factual-showing-required-during-conditional-certification-of-flsa-collective-action\/","title":{"rendered":"New Jersey Federal Court Affirms \u201cModest Factual Showing\u201d Required During Conditional Certification Of FLSA Collective Action"},"content":{"rendered":"
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By Gerald L. Maatman, Jr., Shannon Noelle, and Olga A. Romadin<\/strong><\/p>\n\n\n\n

Duane Morris Takeaways:<\/em><\/strong> On October 12, 2026, Judge Brian R. Martinotti of the U.S. District Court for the District of New Jersey denied <\/a>an employer\u2019s Rule 72 objection of Magistrate Judge Michael A. Hammer\u2019s decision granting conditional certification in Dotson, et al. v. TZ Insurance Solutions LLC, Case No. 2:25-CV-13323 (D.N.J. Oct. 12, 2026). \u00a0\u00a0Three named plaintiffs, former and current sales agent employees of the insurance company-defendant, brought a collective action alleging the Company violated the FLSA by failing to compensate them for time spend logging in and out of computer systems and excluded non-discretionary bonus and commission payments from the regular rate of pay.\u00a0 \u00a0The Company challenged the Magistrate Judge\u2019s conditional certification decision on the basis that it did not adequately consider the Company\u2019s declarations regarding its timekeeping process and certified an overbroad collective action not requested in the complaint that included non-remote and remote employees.\u00a0 These arguments were rejected as was the Company\u2019s request for interlocutory review of whether the two-step framework is applicable in the Third Circuit.\u00a0 The Court opined that a two-step process applies requiring only a \u201cmodest factual showing\u201d at the first, conditional certification stage during which Plaintiffs can rely on declarations establishing that \u201csimilarly situated plaintiffs do in fact exist\u201d that were affected by a common employer policy.<\/em><\/p>\n\n\n\n

Case Background<\/strong><\/p>\n\n\n\n

Plaintiffs Kimberly Dotson, Jennifer Connor, and Amenda McConnell brought a putative collective action individually and on behalf of others similarly situated, against TZ Insurance Solutions LLC (\u201cTZ Insurance,\u201d or \u201cDefendant\u201d), alleging violations under the Fair Labor Standards Act (\u201cFLSA\u201d) and common law by failing to compensate them for all time worked.  Id.<\/em> at 2.  Plaintiffs, current and former hourly insurance sales agents that all worked remotely, specifically alleged that TZ Insurance did not pay them for required pre-shift, meal-period, and post-shift bootup and boot-down work, and that it underpaid their overtime by leaving non-discretionary bonus and commission payments out of their regular rate of pay.  Id.<\/em><\/p>\n\n\n\n

The Company moved to dismiss the claims, but the District Court denied the motion.  Id. <\/em> On February 11, 2026, Plaintiffs moved for conditional certification.  On July 29, 2026, Magistrate Judge Michael A. Hammer granted the motion.  On August 12, 2026, the Company challenged the ruling. It advanced three arguments challenging the Magistrate Judge\u2019s decision, including:  (1) it failed to consider Defendants\u2019 declarations explaining its timekeeping process for Sales Agents and detailing two studies it commissioned to estimate the time it takes Sales Agents to bootup and log-in or shut down and log out of computer systems; (2) it was overbroad in conditionally certifying a group of non-remote and remote Sales Agents that are not similarly situated; and (3) included a breach of contract claim that could not be certified under the FLSA because it was not pled as such in the complaint.  Id.<\/em> at 4. The Company also requested, in the alternative, for certification of an interlocutory appeal on the question of whether the two-step framework for FLSA actions applies in the Third Circuit.  Id.<\/em> Defendants\u2019 three arguments were denied as was its request for interlocutory certification of whether the two-step framework applies.   <\/p>\n\n\n\n

The Court\u2019s Ruling<\/strong><\/p>\n\n\n\n

As to the Company\u2019s first challenge, the Court, in rejecting the argument, found that the first stage of conditional certification requires only a \u201cmodest factual showing\u201d to demonstrate a \u201cfactual nexus between the manner in which the employer\u2019s alleged policy affected him or her and the manner in which it affected the proposed collective\u201d and that \u201csimilarly situated plaintiffs do in fact exist.\u201d Id.<\/em> at 5.  This factual showing, to be clear, is a low threshold requiring just \u201csomething beyond mere speculation.\u201d Id.<\/em>  As such, the Court found that Defendants\u2019 declarations regarding timekeeping processes went to the merits of Plaintiffs\u2019 claims as the evidence \u201cseeks to disprove Plaintiffs\u2019 allegations of the timekeeping process Defendant required them to perform and the amount of time the processes took.\u201d Id.<\/em> at 6-7.  Moreover, on the modest factual showing front, the Court found that though Magistrate Judge Hammer\u2019s \u201cconclusion was based on Plaintiffs\u2019 declarations, courts in this circuit have consistently found declarations sufficient to satisfy Plaintiff\u2019s burden of demonstrating similarly situated plaintiffs exist.\u201d  Id.<\/em> This portion of the Court\u2019s opinion underscores the leniency of the modest factual showing standard; whereas, Plaintiffs\u2019 declarations were sufficient to meet their burden, Defendants\u2019 declarations were insufficient to rebut their showing. <\/p>\n\n\n\n

In rejecting the Company\u2019s second challenge, the Court found that \u201cPlaintiffs\u2019 declarations alleged the same policies applied to all Sales Agents\u201d and that the Company\u2019s declarations did not dispute this point, either.  Id.<\/em> at 7. The Court also noted that Plaintiffs submitted job postings for the Sales Agent position, which listed uniform responsibilities for remote and location-specific Sales Agents.  Id.<\/em> All of which the Court reasoned supported the Magistrate Judge\u2019s finding that Sales Agents were subject to the same treatment, \u201camounting to the required modest factual showing.\u201d  Id.<\/em> The Court clarified, \u201cJudge Hammer was not yet required to determine [if] the members of the collective were in fact similarly situated to the named plaintiffs.\u201d Id.<\/em><\/p>\n\n\n\n

As to the Company\u2019s third challenge, the District Court found that Plaintiffs did allege that the Company\u2019s failure to include commissions and non-discretionary bonus payments into the regular rate of pay violated the FLSA disagreeing with Defendant\u2019s claim that such a claim was not asserted in the operative complaint.  Id.<\/em> at 8. The Court also found that the claim that Magistrate Judge Hammer certified was separate and distinct from the breach of contract claim \u2014 i.e.<\/em>, Plaintiffs alleged that they were not paid commissions in breach of their sales agent agreements and also<\/em> alleged that such commissions were not factored into the regular rate of pay resulting in an underpayment of overtime pay.  Id.<\/em> at 9. The second allegation was certified as part of the FLSA collective action.  Id.<\/em> The Court further noted that the Third Circuit has rejected the argument that the regular rate of pay under the FLSA always has to be \u201cactual wages.\u201d  Id.<\/em> Therefore, Plaintiffs simply brought two concurrent claims as they are permitted to do under applicable case law.  Id.<\/em><\/p>\n\n\n\n

Finally, as to the Company\u2019s request, in the alternative, that the Court certify the question of whether a two-step framework applies for interlocutory review, the Court declined to do so. It opined that this a settled area in the of law in the Third Circuit. Id.<\/em> at 12.<\/p>\n\n\n\n

Implications for Companies<\/strong><\/p>\n\n\n\n

The District Court\u2019s decision in Dotson<\/em> reinforces the Third Circuit\u2019s firm adherence to the \u201cmodest factual showing\u201d standard and the leniency in applicable of this standard as a practical matter.  In opposing conditional certification, employers would be well-advised to submit detailed declarations and documents showing differences in policies applicable to the proposed collective (remote vs. non-remote and locale-specific) and should also draft job postings carefully to avoid what could be viewed as concessions in litigation.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Gerald L. Maatman, Jr., Shannon Noelle, and Olga A. Romadin Duane Morris Takeaways: On October 12, 2026, Judge Brian R. Martinotti of the U.S. District Court for the District of New Jersey denied an employer\u2019s Rule 72 objection of Magistrate Judge Michael A. Hammer\u2019s decision granting conditional certification in Dotson, et al. v. TZ … <\/p>\n

Continue reading “New Jersey Federal Court Affirms \u201cModest Factual Showing\u201d Required During Conditional Certification Of FLSA Collective Action”<\/span><\/a><\/p>\n","protected":false},"author":575,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[42],"tags":[],"ppma_author":[7,134,156],"class_list":["post-3389","post","type-post","status-publish","format-standard","hentry","category-wage-hour-litigation"],"authors":[{"term_id":7,"user_id":575,"is_guest":0,"slug":"gmaatman","display_name":"Gerald L. Maatman, Jr.","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2022\/09\/maatmangerald-100x100.jpg","author_category":"","last_name":"Maatman Jr.","first_name":"Gerald L.","job_title":"","user_url":"https:\/\/www.duanemorris.com\/attorneys\/geraldmaatman.html","description":"Read Gerald's bio.<\/a>"},{"term_id":134,"user_id":717,"is_guest":0,"slug":"snoelle","display_name":"Shannon Noelle","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2025\/07\/noelleshannon-100x100.jpg","author_category":"","last_name":"Noelle","first_name":"Shannon","job_title":"","user_url":"","description":"Read Shannon's Bio<\/a>"},{"term_id":156,"user_id":756,"is_guest":0,"slug":"oromadin","display_name":"Olga Romadin","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2026\/02\/romadinolga-100x100.jpg","author_category":"","last_name":"Romadin","first_name":"Olga","job_title":"","user_url":"https:\/\/www.duanemorris.com\/attorneys\/olgaromadin.html","description":"Read Olga's bio.<\/a>"}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/3389","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/users\/575"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/comments?post=3389"}],"version-history":[{"count":1,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/3389\/revisions"}],"predecessor-version":[{"id":3392,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/3389\/revisions\/3392"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/media?parent=3389"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/categories?post=3389"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/tags?post=3389"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/ppma_author?post=3389"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}