As the recent case of Triggs v. Lowe’s Home centers, Inc., No. 1:13-cv-1897 shows, not all courts are willing to rubberstamp collective actions onto the second stage of litigation.
The six plaintiffs in Triggs were former non-exempt sales specialists for Lowe’s home improvement chain. The plaintiffs claimed that Lowe’s violated the FLSA and the Ohio Minimum Wage Fair Standards Law because they were not paid for pre- and post- shift activities involving the “donning and doffing” of their Lowe’s uniforms. Or, in plain English, they alleged that they had to take their blue Lowe’s vests or aprons on and off at work without being paid for that time. And, of course, despite working in just 4 of Lowe’s 83 Ohio stores, the plaintiffs sought a nationwide FLSA collective action that would include approximately 200,000 non-exempt hourly employees in some 1,700 stores across the entire country. Plaintiffs argued this was appropriate because all Lowe’s non-exempt employees are subject to the same policies of storing and wearing their uniforms.
The court was not buying what the plaintiffs were selling. First, the court decided to hold plaintiffs to the conditional certification “plus” standard – an intermediate level of proof between conditional and final certification – because plaintiffs had engaged in some discovery. Then, the court went about dismantling the notion that a nationwide class could ever be appropriate. It found there was no single policy across all Lowe’s locations regarding where uniforms had to be stored, when they had to be put on, and where and when employees could clock in for pay purposes. It also noted that there were vastly different experiences between plaintiffs’ accounts of their clock-in and out procedures and those of the numerous employee declarations that Lowe’s submitted (homework by Lowe’s that obviously paid off). Thus, the court found that there was no evidence of substantial similarity among the proposed opt-in plaintiffs and refused to conditionally certify a collective action.
