{"id":662,"date":"2023-07-14T12:50:23","date_gmt":"2023-07-14T16:50:23","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=662"},"modified":"2023-07-14T13:10:26","modified_gmt":"2023-07-14T17:10:26","slug":"ohio-federal-court-denies-conditional-certification-in-an-early-application-of-the-sixth-circuits-strong-likelihood-standard-signaling-a-new-normal-for-wage-hour-laws","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2023\/07\/14\/ohio-federal-court-denies-conditional-certification-in-an-early-application-of-the-sixth-circuits-strong-likelihood-standard-signaling-a-new-normal-for-wage-hour-laws\/","title":{"rendered":"Ohio Federal Court Denies Conditional Certification In An Early Application Of The Sixth Circuit\u2019s \u201cStrong-Likelihood\u201d Standard, Signaling A New Normal For Wage & Hour Lawsuits"},"content":{"rendered":"

\"\"<\/a>By Gerald L. Maatman, Jr., Jennifer A. Riley, and Kathryn Brown<\/strong><\/p>\n

Duane Morris Takeaways<\/em><\/strong>:<\/strong> 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<\/a> plaintiff\u2019s motion for court-supervised notice to potential opt-in plaintiffs under 29 U.S.C. \u00a7 216(b) in one of the first applications of the Sixth Circuit\u2019s new standard for ruling on such motions in Clark v. A&L Homecare and Training Center, LLC, 68 F.4th 1003 (6th Cir. 2023).\u00a0 <\/em><\/p>\n

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.\u00a0 Whereas under the prior framework a plaintiff need only make a \u201cmodest factual showing\u201d that other employees are \u201csimilarly situated,\u201d Clark requires plaintiffs to demonstrate a \u201cstrong likelihood\u201d that \u201csimilarly situated\u201d employees exist to warrant notifying other potential plaintiffs about the lawsuit.\u00a0\u00a0 <\/em><\/p>\n

The Court\u2019s opinion in Hutt sends a clear message that the \u201cstrong likelihood\u201d evidentiary standard has teeth.\u00a0 The ruling is a boon for employers defending FLSA claims on behalf of multiple employees.\u00a0 <\/em><\/p>\n

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

In Hutt<\/em>, the plaintiff, a former pest control technician, filed a Complaint against his former employer, Greenix, on February 28, 2020.\u00a0 The plaintiff sought to recover unpaid minimum wages and overtime wages allegedly owed to him under the FLSA.\u00a0 He alleged that Greenix failed to pay him an overtime rate of pay for overtime hours worked, did not pay for certain tasks performed \u201coff the clock\u201d and took improper deductions from his pay.\u00a0 In his Complaint, the plaintiff alleged that approximately 186 other pest control technicians were subject to the same wage violations as he had experienced.<\/p>\n

On February 27, 2022, the plaintiff filed a motion for conditional certification.\u00a0 The plaintiff sought to issue notice to all pest control technicians employed at any of Greenix\u2019s four facilities in Ohio during the three-year period before he filed the Complaint.\u00a0 In support of the motion, the plaintiff relied on his own declaration, various pleadings, and Greenix\u2019s responses to written discovery requests.\u00a0 Greenix opposed the motion.\u00a0 Although the motion was fully briefed, the Court held the motion in abeyance pending the Sixth Circuit\u2019s ruling in Clark<\/em>.<\/p>\n

Following the Sixth Circuit\u2019s ruling in Clark<\/em>, the Court ordered the parties in Hutt<\/em> to brief the issue of whether the plaintiff could satisfy the new, stricter standard to facilitate notice under 29 U.S.C. \u00a7 216(b).\u00a0 In the plaintiff\u2019s supplemental brief, he argued that he had submitted enough evidence to satisfy the new standard.\u00a0 The plaintiff emphasized Greenix\u2019s prior statement in a discovery response that each of its Ohio facilities had consistent pay policies.\u00a0 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.<\/p>\n

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

The Court held that the plaintiff fell short of the evidentiary showing necessary to demonstrate a \u201cstrong likelihood\u201d that there is a group of potential plaintiff employees \u201csimilarly situated\u201d to him under the standard in Clark<\/em>.<\/p>\n

First, the Court explained the FLSA is silent as to the procedure for a plaintiff to advance claims with others who are \u201csimilarly situated.\u201d\u00a0 In the absence of statutory guidance, courts have exercised their discretion to set the procedure governing collective treatment of FLSA claims.<\/p>\n

For this reason, the Court analyzed the two-step standard announced in Clark<\/em>.\u00a0 The first step evaluates whether the plaintiff has shown a \u201cstrong likelihood\u201d that other employees are similarly-situated to the plaintiff.\u00a0 Overcoming the first step requires a plaintiff to submit evidence that the plaintiff\u2019s FLSA injury \u201cresulted from a corporate-wide decision\u201d to violate the FLSA, not human error or a rogue manager.<\/p>\n

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.\u00a0 If the plaintiff makes that showing, the opt-in plaintiffs become actual parties to the lawsuit and proceed with the named plaintiff to trial.\u00a0 As the Court reasoned, the Sixth Circuit\u2019s opinion in Clark<\/em> left the second step of the analysis relatively unchanged from the prior standard.<\/p>\n

In assessing the plaintiff\u2019s status as similarly-situated to others, the Court opined that no single factor is determinative.\u00a0 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.<\/p>\n

In applying the Clark <\/em>standard, the Court found insufficient the plaintiff\u2019s reliance on hearsay statements in his own declaration, including what co-workers allegedly told him, to argue that Greenix had company-wide pay practices.\u00a0 Further, the plaintiff put forth no evidence of the company\u2019s actual compensation plan.\u00a0 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.\u00a0 In essence, the Clark <\/em>standard required the plaintiff to show more.<\/p>\n

Therefore, the Court denied the plaintiff\u2019s motion seeking court-supervised notice to potential plaintiffs pursuant to 29 U.S.C. \u00a7 216(b) of the FLSA.<\/p>\n

Implications For Employers<\/strong><\/p>\n

The ruling in Hutt <\/em>has persuasive value to other district courts in Ohio, Tennessee, Michigan and Kentucky.\u00a0 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.\u00a0 The Court roundly rejected the notion that a sole declaration from the named plaintiff is enough to obtain court-sanctioned notice.\u00a0 It remains to be seen how other courts will apply Hutt <\/em>to a different set of facts.<\/p>\n

Given the emerging trend among federal courts across the country in rejecting the lenient two-step standard, the decision in Hutt<\/em> is an indicator of a major shift in leverage from plaintiffs to defendants in FLSA litigation.<\/p>\n","protected":false},"excerpt":{"rendered":"

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\u2019s motion for court-supervised notice to potential opt-in plaintiffs under 29 U.S.C. \u00a7 216(b) in one of the … <\/p>\n

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