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Despite its significant rulings in other areas, we don&rsquo;t have any blockbuster Supreme Court opinions to discuss this week as it has already decided all of class action before it.&nbsp; Since we don&rsquo;t have a Dukes, Concepcion, Comcast, or AMEX opinion in the offing, let&rsquo;s talk about something else. Courts that employ the two-step certification procedure in FLSA collective action litigation, now the majority, use a relatively lenient standard at the first, &ldquo;conditional certification&rdquo; stage.&nbsp; While courts often note that the plaintiffs must make a minimal showing that the members of the proposed class are &ldquo;similarly situated&rdquo; at that stage, that standard is not invisible as a recent case from the Southern District of New York reflects. In <a href="https://employmentclassactionreport.bakerhostetlerblogs.com/wp-content/uploads/sites/8/2013/06/culinart.pdf">Ikikhueme v. Culinart, Inc., Case No. 12 Civ. 293 </a>(JMF), the employer operated dining facilities at schools, corporations, and elsewhere across the United States.&nbsp; The plaintiff, a former sous chef, contended that he was misclassified as exempt and asserted overtime claims under the FLSA and its New York counterpart.&nbsp; When he moved for conditional certification, perhaps because of overconfidence that the classification was in error, he committed two mistakes, resulting in the motion being denied&nbsp; Mistake No. 1: &nbsp;Changing the proposed class.&nbsp; The plaintiff first moved to certify a class of all food service employees working for the employer, a number in the thousands, but then limited the class to sous chefs, a much narrower group.&nbsp; Still, he sought conditional certification nationwide despite a wide variation in the size of the company&rsquo;s facilities.&nbsp; This change of theory likely influenced the court&rsquo;s view that the plaintiff had no coherent theory covering the putative class members. Mistake No. 2:&nbsp; Not showing enough.&nbsp; More importantly, the plaintiff took an especially minimal approach to certification, relying upon his own declaration reflecting an &ldquo;understanding&rdquo; the company&rsquo;s payroll practices across the country.&nbsp; The court found this showing &ldquo;unsupported&rdquo; and concluded that it failed to meet even the minimum burden for conditional certification.&nbsp; Thus, the court denied the plaintiff&rsquo;s motion. The bottom line:&nbsp; Despite the low standard, a plaintiff seeking conditional certification under the FLSA must still make a minimal showing that the class members are similarly situated.

Southern District of New York Denies Conditional Certification in Misclassification Case