A group of account executive trainees at a freight brokerage company with facilities across the United States are seeking conditional class certification in a Fair Labor Standards Act (FLSA) lawsuit against their employer. The lawsuit alleges that the employees were not paid for all hours worked.
Background
The employer, a freight brokerage company, classified account executive trainees (employees) as exempt from overtime and paid them a regular biweekly salary. The employees filed a lawsuit against their employer under the FLSA, and other various state laws, alleging that they are not exempt and therefore have failed to receive wages, including applicable overtime, for all of the hours they worked. Further, the employees alleged that all of the employer’s account executive trainees were subject to the unlawful pay practice. On that basis, the employees are seeking to conditionally certify a class covering all account executive trainees who worked for the employer over the last three years.
Case allegations and defenses
The account executive trainees are to solicit by phone potential customers needing freight transportation services, provide constant contact with those customers to answer questions about the status and location of their freight, and act as the liaison between the customer and the drivers handling the freight. The work generally requires working hours outside of the designated 7:45 a.m. to 5:15 p.m. shifts and, allegedly, around the clock availability.
In order to conditionally certify an FLSA collective action class, the employees are required to make a “modest factual showing” that members of the proposed class are similarly situated and collectively victims of the same treatment or policy.
The employees here alleged that the employer’s account executive trainees were all trained and supervised the same way at facilities across the country and were kept from deviating from the same company-wide guidelines on how to do their jobs. The employer paid all the account executive trainees only their normally biweekly salary even when they put in more than 60 hours of work per week. Additionally, the employees alleged that the account executive trainees did not need specialized certifications, training, or relevant experience to perform their job. Lastly, the employees alleged that the account executive trainees performed basic tasks in accordance with the employer’s guidelines and had no decision making or supervisory authority.
The employer responded by arguing that the employees are not similarly situated because of the various employment locations of the employees. The employer further responded by stating that the plaintiffs who brought the lawsuit were not able to bring the lawsuit because they did not work for the employer as account executive trainees and therefore could not represent a class on that basis.
The court will now decide whether to conditionally certify the class as a collective action. A certification of the class will allow the case to go forward as a whole, and then the “opt-in” process will begin. In FLSA collective actions, individuals must opt-in to the case to be a part of the case. This is the opposite of Rule 23 class actions where everyone is a member of the class unless they chose to opt out of the class. If the court declines to certify the class, only the plaintiffs will remain in the lawsuit and the other potential class members will have to bring their own lawsuit if they so choose.
Takeaway
The lawsuit is a reminder for employers that they should carefully review their salary guidelines and the various related classifications and exemptions to overtime under the FLSA, as well as under any applicable state wage hour laws. In addition, employers should have clear and complete job descriptions for each position that include any decision making and/or supervisory authority or other duties and responsibilities that support any claimed exempt status. Employers should consult with knowledgeable individuals or experienced employment counsel if they have any serious or difficult questions concerning any employment positions they believe qualify for exempt status.
R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.